As filed with the Securities and Exchange Commission on January 12, 2010
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF
1933
STRYKER CORPORATION
(Exact name of registrant as specified in its charter)
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Michigan
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38-1239739
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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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2825 Airview Boulevard
Kalamazoo, Michigan 49002
(269) 385-2600
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive
offices)
Thomas R. Winkel
Stryker Corporation
2825 Airview Boulevard
Kalamazoo, Michigan 49002
(269) 385-2600
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
William R. Kunkel
Skadden, Arps, Slate, Meagher & Flom LLP
155 North Wacker Drive
Chicago, Illinois 60606
(312) 407-0700
Approximate date
of commencement of proposed sale to the public
: From time to time after this registration statement becomes effective.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.
x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
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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.
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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.
x
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.
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “larger accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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x
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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CALCULATION OF
REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount
to be
Registered(1)
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Proposed
Maximum
Offering Price
Per Unit(1)
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Proposed
Maximum
Aggregate
Offering Price(1)
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Amount of
Registration Fee(1)
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Common Stock, par value $0.10 per share
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Preferred Stock
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Debt Securities
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Warrants
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Subscription Rights
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Stock Purchase Contracts
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Stock Purchase Units
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(1)
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An indeterminate aggregate initial offering price, principal amount or number of the securities of each identified class is being registered 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 on exercise, conversion or exchange of other securities. 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
STRYKER CORPORATION
Common Stock
Preferred Stock
Debt Securities
Warrants
Subscription Rights
Stock Purchase Contracts
Stock Purchase Units
We may offer and
sell from time to time, in one or more offerings, in amounts, at prices and on terms determined at the time of any such offering, (i) shares of our common stock, (ii) shares of our preferred stock, which we may issue in one or more series,
(iii) debt securities, which may be senior debt securities or subordinated debt securities, (iv) warrants, (v) subscription rights, (vi) stock purchase contracts and (vii) stock purchase units, each representing ownership of
a stock purchase contract and debt securities, preferred securities or debt obligations of third-parties, including U.S. treasury securities or any combination of the foregoing, securing the holder’s obligation to purchase our common stock or
other securities under the stock purchase contracts.
We will provide the specific terms of these securities in one or more
supplements to this prospectus at the time of offering. You should read this prospectus and the accompanying prospectus supplement carefully before you make your investment decision.
Our common stock is listed on the New York Stock Exchange under the trading symbol “SYK.” Each prospectus supplement will indicate
if the securities offered thereby will be listed on any securities exchange.
We may offer securities through underwriting
syndicates managed or co-managed by one or more underwriters, or directly to purchasers. The prospectus supplement for each offering of securities will describe in detail the plan of distribution for that offering. For general information about the
distribution of securities offered, please see “Plan of Distribution” on page 20 in this prospectus.
Investing in
our securities involves risks. You should carefully read and consider the risk factors included in our periodic reports, in any prospectus supplement relating to specific offerings of securities and in other documents that we file with the
Securities and Exchange Commission. See “
Risk Factors
” on page
2.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus or any prospectus supplement is truthful or complete. Any representation
to the contrary is a criminal offense.
The date of this prospectus is January 12, 2010
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of an “automatic shelf” registration statement that we filed with the Securities and Exchange Commission,
or SEC, as a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act of 1933, as amended, or the Securities Act. Under this shelf registration process, we may sell, from time to time, an indeterminate amount of any
combination of the securities described in this prospectus in one or more offerings. This prospectus provides you with a general description of the securities we may offer, which is not meant to be a complete description of any security. Each time
that securities are sold, a prospectus supplement containing specific information about the terms of that offering will be provided, including the specific amounts, prices and terms of the securities offered. The prospectus supplement and any other
offering material may also add to, update or change information contained in this prospectus or in documents we have incorporated by reference into this prospectus. We urge you to read both this prospectus and any prospectus supplement and any other
offering material (including any free writing prospectus) prepared by or on behalf of us for a specific offering of securities, together with additional information described under the heading “Where You Can Find More Information” on page
21 of this prospectus. You should rely only on the information contained or incorporated by reference in this prospectus and any prospectus supplement. We have not authorized anyone to provide you with different information. We are not making an
offer to sell or soliciting an offer to purchase these securities in any jurisdiction where the offer or sale is not permitted.
Unless otherwise stated or the context otherwise requires, as used in this prospectus, the words “we,” “us,” “our,” the “Company,” or “Stryker” refer to Stryker Corporation and its
consolidated subsidiaries.
You should not assume that the information contained in this prospectus or any prospectus
supplement is accurate on any date other than the date on the front cover of such document or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even though
this prospectus or any prospectus supplement is delivered or securities are sold on a later date. Neither the delivery of this prospectus or any applicable prospectus supplement nor any distribution of securities pursuant to such documents shall,
under any circumstances, create any implication that there has been no change in the information set forth in this prospectus or any applicable prospectus supplement or in our affairs since the date of this prospectus or any applicable prospectus
supplement.
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STRYKER CORPORATION
Stryker is one of the world’s leading medical technology companies with the most broadly based range of products in orthopaedics and a
significant presence in other medical specialties. Stryker works with respected medical professionals to help people lead more active and more satisfying lives. The Company’s products include implants used in joint replacement, trauma, and
spinal surgeries; surgical equipment and surgical navigation systems; endoscopic and communications systems; patient handling and emergency medical equipment; as well as other medical device products used in a variety of medical specialties. Stryker
was incorporated in Michigan in 1946 as the successor company to a business founded in 1941 by Dr. Homer H. Stryker, a leading orthopaedic surgeon and the inventor of several orthopaedic products.
Our principal executive offices are located at 2825 Airview Boulevard, Kalamazoo, Michigan 49002, and our telephone number is
(269) 385-2600. Our website is www.stryker.com. The content of our website is not incorporated by reference in this prospectus, and you should not consider it a part of this prospectus.
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RISK FACTORS
Investing in our securities involves risk. Before you decide whether to purchase any of our securities, in addition to the other
information, documents or reports included or incorporated by reference into this prospectus and any prospectus supplement or other offering materials, you should carefully consider the risk factors in the section entitled “Risk Factors”
in any prospectus supplement as well as our most recent Annual Report on Form 10-K, any Quarterly Reports on Form 10-Q and any Current Reports on Form 8-K filed subsequent to such Annual Report on Form 10-K, which are incorporated by reference into
this prospectus and any prospectus supplement in their entirety, as the same may be amended, supplemented or superseded from time to time by our filings under the Securities Exchange Act of 1934, as amended, or the Exchange Act. For more
information, see the section entitled “Where You Can Find More Information” on page 21 of this prospectus. These risks could materially and adversely affect our business, financial condition or operating results and could result in a
partial or complete loss of your investment.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING INFORMATION
From time to time, in this prospectus and the documents we incorporate by reference in this prospectus, as well as in
other written reports and oral statements, we discuss our expectations regarding our future performance. Statements and financial discussion and analysis contained herein and in the documents incorporated by reference herein that are not historical
facts are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements are identified by their use of terms and phrases such as “believe,” “anticipate,”
“could,” “estimate,” “intend,” “may,” “plan,” “expect” and similar expressions, including references to assumptions. These forward-looking statements are based on currently available
competitive, financial and economic data, current expectations, estimates, forecasts and projections about the industries in which we operate and management’s beliefs and assumptions. These statements are not guarantees of future performance
and involve risks, uncertainties and assumptions that are difficult to predict. Therefore, actual outcomes and results may differ materially from what is expressed or implied in forward-looking statements. We want to caution you not to place undue
reliance on any forward-looking statement. Among the factors that might affect our performance are:
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weakening of economic conditions that could adversely affect the level of demand for our products;
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pricing pressures generally, including cost-containment measures that could adversely affect the price of or demand for our products;
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changes in foreign exchange markets;
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legislative and regulatory actions;
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unanticipated issues arising in connection with clinical studies and otherwise that affect U.S. Food and Drug Administration approval of new products;
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changes in reimbursement levels from third-party payors;
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a significant increase in product liability claims;
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unfavorable resolution of tax audits;
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changes in financial markets;
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changes in the competitive environment; and
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other risks detailed in our filings with the SEC.
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While we believe that the assumptions underlying such forward-looking statements are reasonable, there can be no assurance that future events or developments will not cause such statements to be
inaccurate. All forward-looking statements contained in this prospectus and the documents we incorporate by reference in this prospectus are qualified in their entirety by this cautionary statement. We expressly disclaim any obligation or
undertaking to update or revise any forward-looking statements to reflect any changes in events or circumstances or in our expectations or results.
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USE OF PROCEEDS
Unless otherwise set forth in a prospectus supplement, we intend to use the net proceeds of any offering of our securities for working
capital and other general corporate purposes, including acquisitions, repayment or refinancing of debt, stock repurchases and other business opportunities. We will have significant discretion in the use of any net proceeds. We may provide additional
information on the use of the net proceeds from the sale of our securities in an applicable prospectus supplement or other offering materials relating to the offered securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for the periods indicated:
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Nine Months Ended
September 30, 2009
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Year Ended December 31,
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2008
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2007
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2006
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2005
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2004
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Ratio of earnings to fixed charges
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31.3x
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29.1x
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31.4x
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37.6x
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35.4x
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27.4x
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The ratio of earnings to fixed charges is calculated by dividing earnings, as
defined, by fixed charges, as defined. For this purpose, “earnings” consists of consolidated earnings from continuing operations before income taxes plus fixed charges, and “fixed charges” consists of interest expense and the
portion of interest expense on operating leases we believe to be representative of the interest factor.
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DESCRIPTION OF SECURITIES
This prospectus contains summary descriptions of the capital stock, debt securities, warrants, subscription rights, stock purchase contracts
and stock purchase units that we may offer and sell from time to time. These summary descriptions are not meant to be complete descriptions of any security. At the time of an offering and sale, this prospectus together with the accompanying
prospectus supplement will contain the material terms of the securities being offered.
DESCRIPTION
OF CAPITAL STOCK
The following description briefly summarizes certain information regarding our capital stock. This
information does not purport to be complete and is subject in all respects to the applicable provisions of the Michigan Business Corporation Act, as amended, or the MBCA, our Restated Articles of Incorporation, as amended, or our articles, and our
By-laws, as amended, or our by-laws.
As used in this “Description of Capital Stock,” the terms “we,”
“us,” “our,” the “Company,” or “Stryker” refer to Stryker Corporation, a Michigan corporation, and do not, unless otherwise specified, include our subsidiaries.
Capital Stock
Our
authorized capital stock consists of (i) 1,000,000,000 shares of common stock, $0.10 par value per share and (ii) 500,000 shares of preferred stock, $1.00 par value per share. As of December 31, 2009, we had 397,882,281 shares of
common stock issued and outstanding, and no shares of preferred stock issued.
Common Stock
Each share of common stock entitles the holder thereof to one vote for each share held by it of record on each matter submitted to a vote.
Other than the election of directors, if an action is to be taken by vote of the shareholders, it will be authorized by a majority of the votes cast by the holders of shares entitled to vote on the action, unless a greater vote is required in our
articles or by-laws. Directors are elected by a plurality of the votes cast at an election.
Subject to the prior payment or
provision therefor of dividends on the preferred stock, if any, holders of the common stock are entitled to receive ratably such dividends, if any, as may be declared from time to time by our Board of Directors out of funds legally available
therefor. Holders of our common stock have no conversion, preemptive or other rights to subscribe for any securities of ours, and there are no redemption or sinking fund provisions with respect to such shares. In the event of any liquidation,
dissolution or distribution of our assets and after satisfaction of the preferential requirements of the preferred stock, if any, holders of common stock will be entitled to share ratably in the distribution of the remaining assets of the Company
available for distribution. The rights, preferences and privileges of holders of common stock are subject to applicable law and the rights of the holders of any shares of preferred stock and any additional classes of stock that we may issue in the
future.
Preferred Stock
Our articles authorize our Board of Directors to issue up to 500,000 shares of preferred stock in one or more series, with such distinctive designation or title and in such number of shares as may be
authorized by our Board of Directors. Our Board of Directors is authorized to prescribe the relative rights and preferences of each series, and the limitations applicable thereto, including but not limited to the following: (i) the voting
powers, full, special, or limited, or no voting powers, of each such series; (ii) the rate, terms and conditions on which dividends will be paid, whether such dividends will be cumulative, and what preference such dividends shall have in
relation to the dividends on other series or classes of stock; (iii) the rights, terms and conditions, if any, for conversion of such series of preferred stock into shares of other series or classes of stock; (iv) any right of the
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Company to redeem the shares of such series of preferred stock, and the price, time and conditions of such redemption, including the provisions for any sinking fund; and (v) the rights of
holders of such series of preferred stock in relation to the rights of other series and classes of stock upon the liquidation, dissolution or distribution of our assets. Unless otherwise provided by our Board of Directors, upon redemption or
conversion, shares of preferred stock will revert to authorized but unissued shares and may be reissued as shares of any series of preferred stock. As of the date hereof, no shares of preferred stock are outstanding and we have no present plans to
issue any such stock.
Limitation of Liability
Our articles provide that, to the full extent authorized or permitted by the MBCA, directors of Stryker will not be personally liable to Stryker or its shareholders for any acts or omissions in such
person’s capacity as a director. Such limitation of liability does not affect the availability of equitable remedies such as injunctive relief or rescission. These provisions will not limit the liability of directors under federal securities
laws.
Certain Statutory, Articles and By-law Provisions Affecting Shareholders
Certain provisions in our articles and by-laws and the MBCA may have the effect of delaying, deferring or preventing a change of control of
the Company or may operate only with respect to extraordinary corporate transactions involving the Company.
Business
Combination Act
We are subject to the provisions of Chapter 7A of the MBCA, which provides that business combinations
between a Michigan corporation and a beneficial owner of shares entitled to 10% or more of the voting power of such corporation generally require the affirmative vote of 90% of the votes of each class of stock entitled to vote and not less than
two-thirds of each class of stock entitled to vote (excluding voting shares owned by such 10% owner). Chapter 7A defines a “business combination” to encompass any merger, consolidation, share exchange, sale of assets, stock issue,
liquidation, or reclassification of securities involving an interested shareholder or certain affiliates. An “interested shareholder” is generally any person who owns 10% or more of the voting shares of the corporation. An
“affiliate” is a person who directly or indirectly controls, is controlled by, or is under common control with, a specified person. Such requirements do not apply if the transaction satisfies fairness standards, other specified conditions
are met and the interested shareholder has been such for at least five years.
Article and By-Law Provisions
Our articles and by-laws include a number of provisions that may have the effect of encouraging persons considering
unsolicited tender offers or other unilateral takeover proposals to negotiate with our Board of Directors rather than pursue non-negotiated takeover attempts. These provisions include an advance notice requirement for director nominations and
actions to be taken at annual meetings of shareholders, the inability of the shareholders to call a special meeting of the shareholders and the availability of authorized but unissued blank check preferred stock.
Advance Notice Requirement
Our by-laws set forth advance notice procedures with regard to shareholder proposals relating to the nomination of candidates for election as directors or new business to be presented at meetings of
shareholders. These procedures provide that notice of such shareholder proposals must be timely given in writing to the secretary of Stryker prior to the meeting at which the action is to be taken. Generally, to be timely, notice must be received at
the principal executive offices of Stryker not less than 90 days nor more than 120 days prior to the meeting. The advance notice requirement does not give the Board of Directors any power to approve or disapprove shareholder director nominations or
proposals but may have the effect of precluding the consideration of certain business at a meeting if the proper notice procedures are not followed.
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Special Meetings of Shareholders
Our by-laws do not grant the shareholders the right to call a special meeting of shareholders. Under our by-laws, special meetings of
shareholders may be called only by the chairman of our Board of Directors, our president or by order of our Board of Directors.
Blank Check Preferred Stock
Our preferred stock could be deemed to have an anti-takeover effect in that, if a
hostile takeover situation should arise, shares of preferred stock could be issued to purchasers sympathetic with our management or others in such a way as to render more difficult or to discourage a merger, tender offer, proxy contest, the
assumption of control by a holder of a large block of our securities or the removal of incumbent management.
The effects of
the issuance of one or more series of the preferred stock on the holders of our common stock could include:
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reduction of the amount otherwise available for payments of dividends on common stock if dividends are payable on the series of preferred stock;
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restrictions on dividends on our common stock if dividends on the series of preferred stock are in arrears;
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dilution of the voting power of our common stock if the series of preferred stock has voting rights, including a possible “veto” power if the
series of preferred stock has class voting rights;
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dilution of the equity interest of holders of our common stock if the series of preferred stock is convertible, and is converted, into our common
stock; and
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restrictions on the rights of holders of our common stock to share in our assets upon liquidation until satisfaction of any liquidation preference
granted to the holders of the series of preferred stock.
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Transfer Agent and Registrar
The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC.
Listing
Our common stock
is listed on the New York Stock Exchange under the symbol “SYK.”
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DESCRIPTION OF DEBT SECURITIES
As used in this prospectus, debt securities means the debentures, notes, bonds and other evidences of indebtedness that we may issue
separately, upon exercise of a debt warrant, in connection with a stock purchase contract or as part of a stock purchase unit, from time to time. The debt securities may either be senior debt securities or subordinated debt securities. Senior debt
securities may be issued under a “Senior Indenture” and subordinated debt securities may be issued under a “Subordinated Indenture,” each to be entered into between us and U.S. Bank National Association, as trustee. This
prospectus sometimes refers to the Senior Indenture and the Subordinated Indenture collectively as the “Indentures.” The forms of the Indentures have been filed with the SEC and are incorporated by reference in the registration statement
on Form S-3 of which this prospectus forms a part. We may also issue debt securities under a separate, new indenture. If that occurs, we will describe any differences in the terms of any such indenture in the prospectus supplement.
The following briefly summarizes the material provisions of the Indentures and the debt securities, other than pricing and related terms
disclosed in the accompanying prospectus supplement or pricing supplement, as the case may be. You should read the more detailed provisions of the applicable Indenture, including the defined terms, for provisions that may be important to you. You
should also read the particular terms of an offering of debt securities, which will be described in more detail in the applicable prospectus supplement or pricing supplement, as the case may be. Copies of the Indentures may be obtained from Stryker
or the trustee.
As used in this “Description of Debt Securities,” the terms “we,” “us,”
“our,” the “Company,” or “Stryker” refer to Stryker Corporation, a Michigan corporation, and do not, unless otherwise specified, include our subsidiaries.
General
The debt securities will be our direct unsecured obligations. The
senior debt securities will rank equally with all of our other senior unsecured and unsubordinated debt. The subordinated debt securities will be subordinate and junior in right of payment to all of our present and future senior indebtedness to the
extent and in the manner set forth in the Subordinated Indenture. The debt securities will not be secured by any of our property or assets. Thus, by owning a debt security, you are one of our unsecured creditors.
Since our operations are partially conducted through our subsidiaries, the cash flow and the consequent ability to service our indebtedness,
including the debt securities, is partially dependent upon the earnings of our subsidiaries and the distribution of those earnings or upon the payments of funds by those subsidiaries to us. Our subsidiaries are separate and distinct legal entities
and have no obligation, contingent or otherwise, to pay any amounts due pursuant to the debt securities or to make funds available to us, whether by dividends, loans or other payments. In addition, the payment of dividends and the making of loans
and advances to us by our subsidiaries may be subject to contractual or statutory restrictions, are contingent upon the earnings of those subsidiaries and are subject to various business considerations. Any right we may have to receive assets of any
of our subsidiaries upon their liquidation or reorganization (and the consequent right of the holders of our debt securities to participate in those assets) will be effectively subordinated to the claims of such subsidiary’s creditors,
including trade creditors.
The Indentures do not limit the aggregate principal amount of debt securities that we may issue
and provide that we may issue debt securities from time to time in one or more series, in each case with the same or various maturities, at par or at a discount. We may issue additional debt securities of a particular series without the consent of
the holders of the debt securities of such series outstanding at the time of the issuance. Any such additional debt securities, together with all other outstanding debt securities of that series, will constitute a single series of debt securities
under the applicable Indenture. The Indentures also do not limit our ability to incur other debt.
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Each prospectus supplement will summarize the material terms relating to the specific series
of debt securities being offered. These terms may include some or all of the following:
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the title of the debt securities and whether they are senior debt securities or subordinated debt securities;
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any limit on the aggregate principal amount of debt securities of such series;
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the purchase price for the debt securities and the denominations of the debt securities, if other than minimum denominations of $2,000 and integral
multiples of $1,000 above that amount;
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the date or dates upon which the debt securities are payable and whether the stated maturity date may be extended or the method used to determine or
extend those dates;
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the rate or rates at which the debt securities of the series shall bear interest, if any, which may be fixed or variable, or the method by which such
rate or rates shall be determined;
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the basis for calculating interest if other than a 360-day year of twelve 30-day months;
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the date or dates from which any interest will accrue or the method by which such date or dates will be determined;
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the dates on which we will pay interest on the debt securities and the regular record date for determining who is entitled to the interest payable on
any interest payment date, or the method by which such date or dates shall be determined;
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the right, if any, to extend the interest payment periods and the duration of any such deferral period;
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any provisions that would determine payments on the debt securities by reference to any index, formula or other method, and the manner of determining
the amount of such payments;
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the place or places where payments on the debt securities will be payable, where any securities may be surrendered for registration of transfer,
exchange or conversion, as applicable, and notices and demands may be delivered to or upon us pursuant to the applicable Indenture;
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the rate or rates of amortization of the debt securities, if any;
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our obligation or discretion, if any, to redeem, repay or repurchase debt securities by making periodic payments to a sinking fund or through an
analogous provision or at the option of holders of the debt securities, and the period or periods within which, the price or prices at which and the other terms and conditions upon which any debt securities of such series shall be redeemed, in whole
or in part, pursuant to such obligation;
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the terms and conditions, if any, regarding the mandatory conversion or exchange of debt securities;
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the period or periods within which, the price or prices at which, and the terms and conditions upon which any debt securities of the series may be
redeemed, in whole or in part, at our option and, if other than by a board resolution, the manner in which any election by us to redeem the debt securities shall be evidenced;
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any restriction or condition on the transferability of the debt securities of a particular series;
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the portion, or methods of determining the portion, of the principal amount of the debt securities which we must pay upon the acceleration of the
maturity of the debt securities in connection with an Event of Default, as defined below, if other than the full principal amount;
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if other than U.S. dollars, the currency or currencies in which the debt securities will be denominated and in which principal, any premium and any
interest will or may be payable or a description of any units based on or relating to a currency or currencies in which the debt securities will be denominated;
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provisions, if any, granting special rights to holders of the debt securities upon the occurrence of specified events;
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any deletions from or modifications or additions to the Events of Default or our covenants with respect to the applicable series of debt securities;
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whether the debt securities will not be subject to defeasance or covenant defeasance, which terms are described below;
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the terms, if any, upon which the holders may convert or exchange the debt securities into or for our common stock, preferred stock or other securities
or property;
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whether we are issuing the debt securities in whole or in part in global form;
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the depositary for global or certificated debt securities;
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the names of any trustees, depositaries, authenticating or paying agents, transfer agents or registrars or other agents with respect to the debt
securities;
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to whom any interest on any debt security shall be payable, if other than the person in whose name the security is registered on the record date for
such interest, and the extent to which, or the manner in which, any interest payable on a temporary global debt security will be paid if other than in the manner provided in the applicable Indenture;
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if the principal amount payable at the stated maturity of any debt security of the series will not be determinable as of any one or more dates prior to
the stated maturity, the amount which shall be deemed to be the principal amount of such debt securities as of any such date for any purpose, including the principal amount thereof which shall be due and payable upon any maturity other than the
stated maturity or which shall be deemed to be outstanding as of any date prior to the stated maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
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whether, under what circumstances and the currency in which we will pay any additional amounts on the debt securities as contemplated in the applicable
Indenture in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to redeem the debt securities rather than pay such additional amounts (and the terms of any such option);
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whether and the extent to which the debt securities are entitled to the benefits of any guarantees by any of our subsidiaries or any other form of
guarantee;
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the subordination provisions applicable to the debt securities, if any; and
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any other specific terms of the debt securities not inconsistent with the applicable Indenture.
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Unless otherwise specified in the applicable prospectus supplement, the debt securities will not be listed on any securities exchange and
will be issued in fully-registered form without coupons.
Debt securities may be sold at a substantial discount below their
stated principal amount, bearing no interest or interest at a rate which at the time of issuance is below market rates. The applicable prospectus supplement will describe the federal income tax consequences and special considerations applicable to
any such debt securities. The debt securities may also be issued as indexed securities or securities denominated in foreign currencies, currency units or composite currencies, as described in more detail in the prospectus supplement relating to any
of the particular debt securities. The prospectus supplement relating to specific debt securities will also describe any special considerations and certain additional tax considerations applicable to such debt securities.
Subordination
The
prospectus supplement relating to any offering of subordinated debt securities will describe the specific subordination provisions, including the extent of subordination of payments by us of the principal of, premium, if any, and interest on such
subordinated debt securities.
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The Subordinated Indenture does not limit the issuance of additional senior indebtedness.
Certain Covenants
Except as set forth below or in any indenture supplemental to the Indentures or in a board resolution of ours establishing a series of securities under the Indentures, the Indentures will not:
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limit the amount of indebtedness or lease obligations that may be incurred by us and our subsidiaries; or
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contain provisions which would give holders of the debt securities the right to require us to repurchase their debt securities in the event of a
decline in the credit rating of our debt securities resulting from a change in control, recapitalization or similar restructuring or in the case of any other event.
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Consolidation, Merger and Sale of Assets
We may consolidate or merge with
or into any other corporation, and we may sell or transfer all or substantially all of our assets to another corporation, provided, among other things, that (a) we are the surviving corporation or the corporation formed by or resulting from any
such consolidation or merger or the transferee of such assets shall be a corporation organized and existing under the laws of the United States, any state thereof or the District of Columbia and shall expressly assume by supplemental indenture
payment of the principal of, and premium, if any, and interest, if any, on the debt securities issued under either the Senior Indenture or the Subordinated Indenture and the performance and observance of the applicable Indenture and (b) we or
such successor corporation shall not immediately thereafter be in default under the applicable Indenture.
Events of Default
The following events are defined in the Indentures as “Events of Default”:
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default in the payment of any installment of interest on any debt securities in such series for 30 days after becoming due;
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default in the payment of principal or premium, if any, of any debt securities in such series when due;
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default in the deposit of any sinking fund payment, when due;
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default in the performance of any other covenant for 90 days after notice, which must be sent by either the trustee or holders of 25% of the principal
amount of the debt securities of the affected series;
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certain events of bankruptcy, insolvency or reorganization; and
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any other Event of Default that may be set forth in the supplemental indenture or board resolution with respect to a particular series of debt
securities.
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If an Event of Default shall occur and be continuing with respect to a series of debt
securities, either the trustee or the holders of at least 25% in principal amount of the outstanding debt securities of such series (or such lesser amount as may be provided for in the debt securities of such series) may declare the entire principal
amount of all the debt securities of such series to be due and payable; provided that, in the case of an Event of Default involving certain events of bankruptcy, insolvency or reorganization, such acceleration is automatic; and, provided further,
that after such acceleration, but before a judgment or decree based on acceleration, the holders of a majority in aggregate principal amount of the outstanding debt securities of that series may, subject to certain conditions, rescind and annul such
acceleration if all Events of Default, other than the nonpayment of accelerated principal, have been cured or waived. Upon the acceleration of the maturity of original issue discount securities, an amount less than the principal amount thereof may
become due and payable. Reference is made to the prospectus supplement relating to any original issue discount securities for the particular provisions relating to acceleration of maturity thereof. No such rescission shall affect any subsequent
default or impair any right consequent thereon.
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The Indentures provide that the trustee shall, after the occurrence of a default with
respect to a particular series of debt securities, give or may withhold from the holders of the debt securities of such series notice of such default known to it (the term default to mean the events specified above without grace periods) to the
extent provided by the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act.
We will be required to furnish
the trustee annually a statement by certain of our officers to the effect that to the best of their knowledge we are not in default in the fulfillment of any of our obligations under the Indentures or, if there has been a default in the fulfillment
of any such obligation, specifying each such default. No holder of any debt securities of any particular series shall have any right to institute any judicial or other proceeding with respect to the Indentures, or for the appointment of a receiver
or trustee, or for any other remedy unless:
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an Event of Default shall have occurred and be continuing and such holder shall have given the trustee prior written notice of such continuing Event of
Default;
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the holders of not less than 25% of the outstanding principal amount of the debt securities of a particular series shall have requested the trustee for
such series to institute proceedings in respect of such Event of Default;
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the trustee shall have been offered reasonable indemnity against its costs, expenses and liabilities in complying with such request;
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the trustee shall have failed to institute proceedings 60 days after the receipt of such notice, request and offer of indemnity; and
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no direction inconsistent with such written request shall have been given for 60 days by the holders of a majority in principal amount of the
outstanding debt securities of such series.
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However, a holder may bring a lawsuit to receive payment of
money due on a debt security on or after the due date of such payment.
The holders of a majority in principal amount of a
particular series of debt securities outstanding will have the right, subject to certain limitations, to direct the time, method and place of conducting any proceeding for any remedy available to the trustee with respect to such series or exercising
any trust or power conferred to the trustee, and to waive certain defaults. The Indentures provide that in case an Event of Default shall occur and be continuing, the trustee shall exercise such of its rights and powers under the Indentures, and use
the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. Subject to such provisions, the trustee will be under no obligation to exercise any of its rights
or powers under the Indentures at the request of any of the holders of debt securities of a particular series unless they shall have offered to the trustee security or indemnity reasonably satisfactory to the trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such request.
Discharge, Defeasance and Covenant Defeasance
Unless otherwise indicated to the contrary in the applicable prospectus supplement, we may discharge or defease our obligations under each
Indenture as set forth below.
We may discharge certain obligations to holders of any series of debt securities issued under
either the Senior Indenture or the Subordinated Indenture which have not already been delivered to the trustee for cancellation and which have either become due and payable or are by their terms due and payable within one year (or scheduled for
redemption within one year) by, among other things, irrevocably depositing with the trustee funds or government obligations denominated in U.S. dollars or in the foreign currency in which debt securities of such series are payable in an amount
sufficient to pay the entire indebtedness on debt securities of such series with respect to principal (and premium and additional amounts, if any) and interest to the date of such deposit (if debt securities of such series have become due and
payable) or to the maturity thereof or the date of redemption of debt securities of such series, as the case may be.
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Unless otherwise indicated in the applicable prospectus supplement, we may elect either
(i) to defease and be discharged from any and all obligations with respect to the debt securities of or within any series (except for, among other things, the obligation to pay additional amounts, if any, upon the occurrence of certain events
of taxation, assessment or governmental charge with respect to payments on debt securities of such series and other obligations to register the transfer or exchange of debt securities of such series, to replace temporary or mutilated, destroyed,
lost or stolen debt securities, to maintain an office or agency with respect to the debt securities and to hold moneys for payment in trust), or (ii) to be released from our obligations with respect to certain covenants applicable to the debt
securities of or within any series of debt securities and any omission to comply with such obligations shall not constitute an Event of Default with respect to such series of debt securities upon the deposit with the Indenture trustee, in trust for
such purpose, of money and/or government obligations which through the payment of principal and interest in accordance with their terms will provide money in an amount sufficient to pay the principal of (and premium, if any) or interest on such debt
securities to maturity. As a condition to defeasance or covenant defeasance, we must, among other things, deliver to the trustee an opinion of counsel to the effect that the holders of such debt securities will not recognize income, gain or loss for
federal income tax purposes as a result of such defeasance or covenant defeasance and will be subject to federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such defeasance or covenant
defeasance had not occurred. Such opinion of counsel, in the case of defeasance under clause (i) above, must refer to and be based upon a ruling of the Internal Revenue Service or a change in applicable federal income tax law occurring after
the date of the relevant Indenture. In addition, in the case of either defeasance or covenant defeasance, we must deliver to the trustee an officers’ certificate and an opinion of counsel, each stating that all conditions precedent with respect
to such defeasance or covenant defeasance have been complied with.
We may exercise our defeasance option with respect to such
debt securities notwithstanding our prior exercise of our covenant defeasance option.
Modification and Waiver
Modification and amendments of the Indentures may be made by us and the trustee with the consent of the holders of not less than a majority
in aggregate principal amount of the outstanding debt securities of each series affected thereby; provided, however, that no such modification or amendment may, without the consent of the holder of each outstanding debt security affected thereby:
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change the stated maturity of the principal of, or any installment of interest on, debt securities of any series;
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reduce the principal amount of, or the rate of interest on or any premium payable upon the redemption of, debt securities of any series;
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change our obligation to pay additional amounts with respect to debt securities of any series or reduce the amount of the principal of an original
issue discount debt security or any other debt security that would be due and payable upon a declaration of acceleration of the maturity thereof;
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change the place of payment where, or the coin or currency in which, the principal of, or any premium or interest on, debt securities of any series is
payable;
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impair the right to institute suit for the enforcement of any payment on or after the stated maturity of debt securities of any series;
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reduce the percentage in principal amount of an outstanding series of debt securities, the consent of whose holders is required in order to take
certain actions;
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modify any of the provisions in the Indentures regarding the waiver of past defaults and the waiver of certain covenants by the holders of a particular
series of debt securities except to increase any percentage vote required or to provide that certain other provisions of the Indentures cannot be
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modified or waived without the consent of the holder of each debt security of such series affected thereby;
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make any change that adversely affects the right to convert or exchange any series of debt security into or for our common stock or other securities in
accordance with its terms; or
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modify any of the above provisions.
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The holders of at least a majority in aggregate principal amount of the debt securities of any series may, on behalf of the holders of all debt securities of such series, waive our compliance with certain
restrictive provisions of the applicable Indenture. 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 debt securities of such series, waive any
past default and its consequences under the Indenture with respect to the debt securities of such series, except a default:
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in the payment of principal of (or premium, if any), any interest on or any additional amounts with respect to debt securities of such series; or
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in respect of a covenant or provision of the Indenture that cannot be modified or amended without the consent of the holder of each debt security of
any series.
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Notwithstanding the foregoing, certain types of changes do not require any vote by holders of
the debt securities. These types of changes are limited to corrections and clarifications and certain other changes that would not adversely affect holders of the debt securities. Nor do we need any approval to make changes that affect only debt
securities to be issued under the Indenture after the changes take effect.
The Subordinated Indenture may not be amended to
alter the subordination of any outstanding subordinated debt securities without the consent of each holder of then outstanding senior indebtedness that would be adversely affected by the amendment.
Payment and Paying Agents
Unless otherwise indicated in the applicable prospectus supplement, payment of interest on a debt security on any interest payment date will be made to the person in whose name a debt security is registered at the close of business on the
record date for the interest.
Unless otherwise indicated in the applicable prospectus supplement, principal, interest and
premium on the debt securities of a particular series will be payable at the office of such paying agent or paying agents as we may designate for such purpose from time to time. Notwithstanding the foregoing, at our option, payment of any interest
may be made by check mailed to the address of the person entitled thereto as such address appears in the security register.
Unless otherwise indicated in the applicable prospectus supplement, a paying agent designated by us will act as paying agent for payments with respect to debt securities of each series. All paying agents initially designated by us for the
debt securities of a particular series will be named in the applicable prospectus supplement. We may at any time designate additional paying agents or rescind the designation of any paying agent or approve a change in the office through which any
paying agent acts, except that we will be required to maintain a paying agent in each place of payment for the debt securities of a particular series.
All moneys paid by us to a paying agent for the payment of the principal, interest or premium on any debt security which remain unclaimed at the end of two years after such principal, interest or premium
has become due and payable will be repaid to us upon request, and the holder of such debt security shall thereafter, as an unsecured general creditor, look only to us for payment thereof.
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Denominations, Registrations and Transfer
Unless an accompanying prospectus supplement states otherwise, debt securities will be represented by one or more global certificates
registered in the name of a nominee for The Depository Trust Company, or DTC. In such case, each holder’s beneficial interest in the global securities will be shown on the records of DTC and transfers of beneficial interests will only be
effected through DTC’s records.
A holder of debt securities may only exchange a beneficial interest in a global security
for certificated securities registered in the holder’s name if:
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DTC notifies us that it is unwilling or unable to continue serving as the depositary for the relevant global securities or DTC ceases to maintain
certain qualifications under the Exchange Act and no successor depositary has been appointed for 90 days; or
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we determine, in our sole discretion (but subject to the procedures of DTC), that the global security shall be exchangeable.
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If debt securities are issued in certificated form, they will only be issued in the minimum denomination
specified in the accompanying prospectus supplement and integral multiples of such denomination. Transfers and exchanges of such debt securities will only be permitted in such minimum denomination. Transfers of debt securities in certificated form
may be registered at the trustee’s corporate office or at the offices of any paying agent or trustee appointed by us under the Indentures. Exchanges of debt securities for an equal aggregate principal amount of debt securities in different
denominations may also be made at such locations.
Governing Law
The Indentures and debt securities will be governed by, and construed in accordance with, the internal laws of the State of New York, without
regard to its principles of conflicts of laws (other than Section 5-1401 of the General Obligations Law of the State of New York), except to the extent that the Trust Indenture Act is applicable, in which case the Trust Indenture Act will
govern.
Concerning the Trustee
We anticipate appointing U.S. Bank National Association as the trustee under the Indentures and also as the paying agent, conversion agent, registrar and custodian with regard to the debt securities. The
trustee or its affiliates may in the future provide banking and other services to us in the ordinary course of their respective businesses.
Conversion or Exchange Rights
The prospectus supplement will describe the terms, if any, on which a series of
debt securities may be convertible into or exchangeable for our common stock, preferred stock or other debt securities. These terms will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our
option. These provisions may allow or require the number of shares of our common stock or other securities to be received by the holders of such series of debt securities to be adjusted.
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DESCRIPTION OF WARRANTS
This section describes the general terms and provisions of warrants to acquire our securities that we may issue from time to time. The
applicable prospectus supplement will describe the terms of any warrant agreement and the warrants issuable thereunder. If any particular terms of the warrants described in the prospectus supplement differ from any of the terms described herein,
then the terms described herein will be deemed superseded by that prospectus supplement.
We may issue warrants for the
purchase of our debt securities, common stock, preferred stock or securities of third parties or other rights, including rights to receive payment in cash or securities based on the value, rate or price of one or more specified commodities,
currencies, securities or indices, or any combination of the foregoing. We may issue warrants independently or together with other securities, and they may be attached to or separate from the other securities. Each series of warrants will be issued
under a separate warrant agreement that we will enter into with a bank or trust company, as warrant agent, as detailed in the applicable prospectus supplement. The warrant agent will act solely as our agent in connection with the warrants and will
not assume any obligation, or agency or trust relationship, with you. We will file a copy of the warrant and warrant agreement with the SEC each time we issue a series of warrants, and these warrants and warrant agreements will be incorporated by
reference into the registration statement of which this prospectus is a part. A holder of our warrants should refer to the provisions of the applicable warrant agreement and prospectus supplement for more specific information.
The prospectus supplement relating to a particular issue of warrants will describe the terms of those warrants, including, when applicable:
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the currency or currencies, including composite currencies, in which the price of the warrants may be payable;
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the number of warrants offered;
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the securities underlying the warrants, including the securities of third parties or other rights, if any, to receive payment in cash or securities
based on the value, rate or price of one or more specified commodities, currencies, securities or indices, or any combination of the foregoing, purchasable upon exercise of the warrants;
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the exercise price and the amount of securities you will receive upon exercise;
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the procedure for exercise of the warrants and the circumstances, if any, that will cause the warrants to be automatically exercised;
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the rights, if any, we have to redeem the warrants;
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the date on which the right to exercise the warrants will commence and the date on which the warrants will expire;
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the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security;
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the date on and after which the warrants and the related securities will be separately transferable;
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U.S. federal income tax consequences;
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the name of the warrant agent; and
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any other material terms of the warrants.
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After warrants expire they will become void. All warrants will be issued in registered form.
The prospectus supplement may provide for the adjustment of the exercise price of the warrants.
Warrants may be exercised at
the appropriate office of the warrant agent or any other office indicated in the applicable prospectus supplement. Before the exercise of warrants, holders will not have any of the rights of holders of the securities purchasable upon exercise and
will not be entitled to payments made to holders of those securities.
The applicable warrant agreement may be amended or
supplemented without the consent of the holders of the warrants to which it applies to effect changes that are not inconsistent with the provisions of the warrants and that do not materially and adversely affect the interests of the holders of the
warrants. However, any amendment that materially and adversely alters the rights of the holders of warrants will not be effective unless the holders of at least a majority of the applicable warrants then outstanding approve the amendment. Every
holder of an outstanding warrant at the time any amendment becomes effective, by continuing to hold the warrant, will be bound by the applicable warrant agreement as amended. The prospectus supplement applicable to a particular series of warrants
may provide that certain provisions of the warrants, including the securities for which they may be exercisable, the exercise price and the expiration date, may not be altered without the consent of the holder of each warrant.
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DESCRIPTION OF SUBSCRIPTION RIGHTS
We may issue subscription rights to purchase debt securities, preferred stock, common stock or other securities. These subscription rights
may be issued independently or together with any other security offered hereby and may or may not be transferable by the shareholder receiving the subscription rights in such offering. In connection with any offering of subscription rights, we may
enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which the underwriters or other purchasers may be required to purchase any securities remaining unsubscribed for after such offering.
The applicable prospectus supplement will describe the specific terms of any offering of subscription rights for which this prospectus is
being delivered, including the following:
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the price, if any, for the subscription rights;
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the exercise price payable for each share of debt securities, preferred stock, common stock or other securities upon the exercise of the subscription
rights;
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the number of subscription rights issued to each shareholder;
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the number and terms of the shares of debt securities, preferred stock, common stock or other securities which may be purchased per each subscription
right;
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the extent to which the subscription rights are transferable;
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any other terms of the subscription rights, including the terms, procedures and limitations relating to the exchange and exercise of the subscription
rights;
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the date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights shall expire;
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the extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities; and
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if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of
subscription rights.
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The description in the applicable prospectus supplement of any subscription rights we
offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable subscription rights certificate, which will be filed with the SEC if we offer subscription rights. For more information on how you can obtain
copies of any subscription rights certificate if we offer subscription rights, please see the section entitled “Where You Can Find More Information.”
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DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, including contracts obligating holders to purchase from or sell to us, and
obligating us to sell to or purchase from the holders, a specified number of shares of common stock or other securities at a future date or dates, which we refer to in this prospectus as stock purchase contracts. The price per share of the
securities and the number of shares of the securities may be fixed at the time the stock purchase contracts are issued or may be determined by reference to a specific formula set forth in the stock purchase contracts, and may be subject to
adjustment under anti-dilution formulas. The stock purchase contracts may be issued separately or as part of units consisting of a stock purchase contract and debt securities, preferred securities or debt obligations of third parties, including U.S.
treasury securities, any other securities described in the applicable prospectus supplement or any combination of the foregoing, securing the holders’ obligations to purchase or sell the securities under the stock purchase contracts, which we
refer to herein as stock purchase units. The stock purchase contracts may require holders to secure their obligations under the stock purchase contracts in a specified manner. The stock purchase contracts also may require us to make periodic
payments to the holders of the stock purchase contracts or the stock purchase units, as the case may be, or vice versa, and those payments may be unsecured or pre-funded on some basis.
The applicable prospectus supplement will describe the terms of the stock purchase contracts or stock purchase units. This description is
not complete and the description in the prospectus supplement will not necessarily be complete, and reference is made to the stock purchase contracts, and, if applicable, collateral or depositary arrangements relating to the stock purchase contracts
or stock purchase units, which will be filed with the SEC each time we issue stock purchase contracts or stock purchase units. If any particular terms of the stock purchase contracts or stock purchase units described in the prospectus supplement
differ from any of the terms described herein, then the terms described herein will be deemed superseded by that prospectus supplement. Material United States federal income tax considerations applicable to the stock purchase units and the stock
purchase contracts will also be discussed in the applicable prospectus supplement.
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PLAN OF DISTRIBUTION
We may sell the securities being offered hereby in one or more of the following ways from time to time:
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to underwriters for resale to purchasers;
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directly to purchasers; or
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through agents or dealers to purchasers.
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In addition, Stryker may enter into derivative or hedging transactions with third parties or sell securities not covered by this prospectus to third parties in privately negotiated transactions. In
connection with such a transaction, the third parties may sell securities covered by and pursuant to this prospectus and an applicable prospectus supplement. If so, the third parties may use securities borrowed from us or others to settle such sales
and may use securities received from us to close out any related short positions. We may also loan or pledge securities covered by this prospectus and an applicable prospectus supplement to third parties, who may sell the loaned securities or, in an
event of default in the case of a pledge, sell the pledged securities pursuant to this prospectus and the applicable prospectus supplement.
We will identify the specific plan of distribution, including any underwriters, dealers, agents or direct purchasers and their compensation, in a prospectus supplement.
20
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, Illinois,
will act as counsel to Stryker and certain matters of Michigan law will be passed upon for us by Warner Norcross & Judd LLP. Counsel for any underwriter or agent will be noted in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Stryker Corporation and its subsidiaries appearing in Stryker’s Annual Report (Form 10-K) for the year ended December 31, 2008 (including the schedule
appearing therein), and the effectiveness of Stryker’s internal control over financial reporting as of December 31, 2008 have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their
reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-3 under the Securities Act relating to the securities covered by this
prospectus. This prospectus does not contain all of the information set forth in the registration statement and the exhibits filed as part of the registration statement. For further information with respect to us and the securities being offered, we
refer you to the registration statement and the exhibits filed as a part of the registration statement. Statements contained in the prospectus concerning the contents of any contract or any other document are not necessarily complete. If a contract
or document has been filed as an exhibit to the registration statement or otherwise filed with the SEC, we refer you to the copy of the contract or document that has been filed. Each statement in this prospectus relating to a contract or document is
qualified in all respects by reference to the contract or document to which it refers. In addition, we file annual, quarterly and periodic reports, proxy statements and other information with the SEC. You may read and copy any document that we file
with the SEC at the SEC’s public reference room at 100 F Street N.E., Washington, D.C. 20549. You may obtain information on the operation of the SEC’s public reference facilities by calling the SEC at 1-800-SEC-0330. You may request copies
of these documents, upon payment of a duplicating fee, by writing to the SEC at its principal office at 100 F Street NE, Room 1580, Washington, D.C. 20549. The SEC maintains an Internet website at http://www.sec.gov that contains reports, proxy and
information statements and other information regarding issuers that file electronically with the SEC. Our SEC filings are accessible through the Internet at that website. 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. Our reports on Forms 10-K, 10-Q and 8-K, and amendments to those reports, are also available for download, free of charge, as soon as reasonably practicable after these reports are
filed with the SEC, at our website at www.stryker.com. The content of our website is not incorporated by reference in this prospectus, and you should not consider it a part of this prospectus.
The SEC allows us to “incorporate by reference” the information we file with them, which means that (i) we can disclose
important information to you by referring you to those documents and (ii) those documents are considered part of this prospectus. The following documents are incorporated by reference into this prospectus (other than documents or information
deemed to have been furnished and not filed in accordance with SEC rules):
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•
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Annual Report on Form 10-K for the year ended December 31, 2008 (including portions of our definitive Proxy Statement for the 2009 Annual Meeting
of Shareholders incorporated therein by reference);
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21
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•
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Quarterly Report on Form 10-Q for the quarter ended March 31, 2009;
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•
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Quarterly Report on Form 10-Q for the quarter ended June 30, 2009;
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•
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Amendment No. 1 to Quarterly Report on Form 10-Q for the quarter ended June 30, 2009;
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•
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Quarterly Report on Form 10-Q for the quarter ended September 30, 2009;
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•
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Current Reports on Form 8-K filed with the SEC on February 12, 2009, March 10, 2009, May 11, 2009, August 3,
2009, October 30, 2009, December 3, 2009 and January 5, 2010; and
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•
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The description of our common stock set forth in our registration statement on Form 8-A filed with the SEC on July 1, 1997.
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We also incorporate by reference all documents we may subsequently file pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the initial filing date of the registration statement of which this prospectus is a part and prior to the termination of the offering (other than documents or information deemed to have been furnished and
not filed in accordance with SEC rules). The most recent information that we file with the SEC automatically updates and supersedes older information. The information contained in any such filing will be deemed to be a part of this prospectus,
commencing on the date on which the document is filed.
We will provide to each person, including any beneficial owner, to
whom this prospectus is delivered a copy of any or all of the information that we have incorporated by reference into this prospectus but not delivered with this prospectus, at no cost to the requestor. To receive a free copy of any of the documents
incorporated by reference into this prospectus, other than exhibits, unless they are specifically incorporated by reference into those documents, call or write:
Stryker Corporation
2825 Airview Boulevard
Kalamazoo, Michigan 49002
Attention: Corporate Secretary
Tel: (269) 385-2600
22
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 estimated expenses relating to the issuance and distribution of the securities being registered, other than underwriting discounts and commissions, to be paid by the
registrant.
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Amount
To Be Paid
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SEC registration fee
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$
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*
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Trustee and transfer agent fees
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**
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Legal fees and expenses
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**
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Accounting fees and expenses
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**
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Rating agency and listing fees
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**
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Printing and engraving fees and expenses
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**
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Miscellaneous
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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) under the Securities Act and calculated in connection with an offering of securities under this registration statement pursuant
to Rule 457(r) under the Securities Act.
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**
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These fees cannot be estimated at this time as they are calculated based on the securities offered and the number of issuances. An estimate of the aggregate expenses in
connection with the sale and distribution of the securities being offered will be included in the applicable prospectus supplement.
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Item 15.
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Indemnification of Directors and Officers
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Our by-laws require us to indemnify our directors and certain officers as designated by our Board of Directors from time to time to the fullest extent authorized or permitted by law (as now or hereafter
in effect). Such right to indemnification continues as to a person who has ceased to be a director or designated officer and inures to the benefit of his or her heirs, executors and personal and legal representatives. However, except for proceedings
to enforce rights to indemnification, we are not obligated to indemnify any director or designated officer (or his or her heirs, executors or personal or legal representatives) in connection with a proceeding (or part thereof) initiated by such
person unless such proceeding (or part thereof) was authorized or consented to by our Board of Directors. The right to indemnification includes the right to be paid by Stryker, promptly as incurred, the reasonable expenses of defending or otherwise
participating in any action, suit or proceeding in advance of its final disposition upon receipt of a written undertaking executed by or on behalf of such director or designated officer to repay the advance if it is ultimately determined that he or
she did not meet the standard of conduct, if any, required for the indemnification of a person under the circumstances. We may, to the extent authorized from time to time by our Board of Directors, provide rights to indemnification and to the
advancement of expenses to other officers, employees and agents of Stryker. These rights to indemnification and to the advancement of expenses are not exclusive of any other right that any person may have or hereafter acquire under our by-laws, our
articles, any statute, agreement, vote of shareholders or disinterested directors or otherwise. Any repeal or modification of the relevant sections of our by-laws will not adversely affect any rights to indemnification and to the advancement of
expenses of a director or designated officer existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
Under our by-laws, we also have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of Stryker, or is or was serving at our request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity or arising out of his or her status as such, whether or not we would have the power to indemnify him or her against such liability under applicable law.
II-1
Our articles provide that, to the full extent authorized or permitted by the MBCA, directors
of Stryker will not be personally liable to Stryker or its shareholders for any acts or omissions in such person’s capacity as a director. Any amendment, alteration or repeal of such provision of our articles by our shareholders will not
adversely affect any right or protection of a director of Stryker for or with respect to any act or omission of such director occurring prior to, or at the time of, such amendment, alteration or repeal.
Section 561 of the MBCA provides that a Michigan corporation may indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding (whether civil, criminal, administrative or investigative and whether formal or informal), other than an action by or in the right of the corporation, by reason of the fact
that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise, whether for profit or not, against expenses, including attorneys’ fees, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if the person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation or its shareholders, and with respect to any criminal
action or proceeding, if the person had no reasonable cause to believe his or her conduct was unlawful. In addition, Section 562 of the MBCA provides that a Michigan corporation may indemnify a person who was or is a party or is threatened to
be made a party to a threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, whether for profit or not, against
expenses, including attorneys’ fees and amounts paid in settlement actually and reasonably incurred by the person in connection with the action or suit, if the person acted in good faith and in a manner the person reasonably believed to be in
or not opposed to the best interests of the corporation or its shareholders. The MBCA does not permit indemnification for a claim, issue or matter in which the person has been found liable to the corporation unless application for indemnification is
made to, and ordered by, the court conducting the proceeding or another court of competent jurisdiction.
Section 563 of
the MBCA provides that a director or officer who has been successful on the merits or otherwise in defense of an action, suit or proceeding referred to in Sections 561 and 562 of the MBCA, or in defense of a claim, issue, or matter in the action,
suit, or proceeding, shall be indemnified by the corporation against actual and reasonable expenses, including attorneys’ fees, incurred by him or her in connection with the action, suit or proceeding, and an action, suit, or proceeding brought
to enforce this mandatory indemnification.
The foregoing statements are subject to the detailed provisions of the MBCA, our
articles and our by-laws.
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Exhibit No.
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Document
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1.1
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Form of Underwriting Agreement.*
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4.1
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Composite copy of Restated Articles of Incorporation as amended through April 19, 2000 (Incorporated by reference to Exhibit 3(i) to the Company’s Form 10-K for the year ended
December 31, 2000 (Commission File No. 000-09165)).
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4.2
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Certificate of Amendment of Restated Articles of Incorporation dated June 4, 2004 (Incorporated by reference to Exhibit 3(i) to the Company’s Form 10-Q for the quarter ended
June 30, 2004 (Commission File No. 000-09165)).
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4.3
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Articles of Amendment with respect to any preferred stock issued hereunder.*
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II-2
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Exhibit No.
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Document
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4.4
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By-Laws (Incorporated by reference to Exhibit 3(ii) to the Company’s Form 8-K dated October 28, 2008 (Commission File No. 000-09165)).
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4.5
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Form of certificate representing shares of preferred stock.*
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4.6
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Form of senior indenture, to be entered into between Stryker Corporation and U.S. Bank National Association, as trustee.
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4.7
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Form of subordinated indenture, to be entered into between Stryker Corporation and U.S. Bank National Association, as trustee.
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4.8
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Form of debt security.*
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4.9
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Form of warrant agreement (including form of warrant certificate).*
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4.10
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Form of subscription rights agreement (including form of subscription rights certificate).*
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4.11
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Form of stock purchase contract (including form of stock purchase contract certificate).*
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4.12
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Form of stock purchase unit agreement (including form of stock purchase unit certificate).*
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5.1
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Opinion of Warner Norcross & Judd LLP.
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5.2
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Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
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12.1
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Statement regarding computation of ratio of earnings to fixed charges.
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23.1
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Consent of Ernst & Young LLP.
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23.2
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Consent of Warner Norcross & Judd LLP (included in exhibit 5.1).
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23.3
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Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in exhibit 5.2).
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24.1
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Power of Attorney (included as part of the signature pages hereto).
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25.1
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Form T-1 Statement of Eligibility of Trustee under the Trust Indenture Act of 1939, as amended, of U.S. Bank National Association, as trustee under the senior
indenture.
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*
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To be filed, if necessary, after the effectiveness of this registration statement as an exhibit to a post-effective amendment hereto or to be filed with the SEC under
the Securities Exchange Act of 1934, as amended.
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(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 this registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of 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 effective registration statement; and
II-3
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if 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 a 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 to be deemed 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 of 1933 shall be deemed to be part of and
included in the registration statement as of the earlier of the date such form of prospectus 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 a 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 a 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;
II-4
(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) That for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 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 the 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) The undersigned registrant hereby undertakes to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer, the transactions by the
underwriters during the subscription period, the amount of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters is to be made on terms differing
from those set forth on the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms of such offering.
(d) 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 Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
II-5
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 Kalamazoo, State of Michigan, on January 12, 2010.
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STRYKER CORPORATION
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By:
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/
S
/ C
URT
R.
H
ARTMAN
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Name:
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Curt R. Hartman
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Title:
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Vice President and Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Curt R. Hartman, Jeanne M.
Blondia and Curtis E. Hall, and each of them, as attorneys-in-fact, each with the power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to sign any registration statement for the same offering covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933,
as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as 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 her or their 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
/ S
TEPHEN
P.
M
AC
M
ILLAN
Stephen P.
MacMillan
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President, Chief Executive Officer
and Chairman of the Board
of
Directors
(Principal Executive Officer)
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January 12, 2010
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/
S
/ C
URT
R.
H
ARTMAN
Curt R. Hartman
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Vice President and Chief
Financial Officer
(Principal Financial Officer)
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January 12, 2010
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/
S
/ T
ONY
M.
M
C
K
INNEY
Tony M. McKinney
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Vice President and Chief
Accounting Officer
(Principal Accounting Officer)
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January 12, 2010
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/
S
/ H
OWARD
E. C
OX
,
J
R
.
Howard E. Cox, Jr.
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Director
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January 12, 2010
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/
S
/ S
RIKANT
M. D
ATAR
,
P
H
.D.
Srikant M. Datar, Ph.D.
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Director
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January 12, 2010
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II-6
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Signature
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Title
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Date
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/
S
/ D
ONALD
M.
E
NGELMAN
, P
H
.D.
Donald M. Engelman, Ph.D.
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Director
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January 12, 2010
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/
S
/ L
OUISE
L.
F
RANCESCONI
Louise L. Francesconi
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Director
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January 12, 2010
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/
S
/ H
OWARD
L.
L
ANCE
Howard L. Lance
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Director
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January 12, 2010
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/
S
/ W
ILLIAM
U.
P
ARFET
William U. Parfet
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Director
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January 12, 2010
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/
S
/ R
ONDA
E.
S
TRYKER
Ronda E. Stryker
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Director
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January 12, 2010
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II-7
EXHIBIT INDEX
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Exhibit No.
|
|
Document
|
|
1.1
|
|
Form of Underwriting Agreement.*
|
|
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4.1
|
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Composite copy of Restated Articles of Incorporation as amended through April 19, 2000 (Incorporated by reference to Exhibit 3(i) to the Company’s Form 10-K for the year ended
December 31, 2000 (Commission File No. 000-09165)).
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|
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4.2
|
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Certificate of Amendment of Restated Articles of Incorporation dated June 4, 2004 (Incorporated by reference to Exhibit 3(i) to the Company’s Form 10-Q for the quarter ended
June 30, 2004 (Commission File No. 000-09165)).
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4.3
|
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Articles of Amendment with respect to any preferred stock issued hereunder.*
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|
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4.4
|
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By-Laws (Incorporated by reference to Exhibit 3(ii) to the Company’s Form 8-K dated October 28, 2008 (Commission File No. 000-09165)).
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4.5
|
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Form of certificate representing shares of preferred stock.*
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4.6
|
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Form of senior indenture, to be entered into between Stryker Corporation and U.S. Bank National Association, as trustee.
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4.7
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Form of subordinated indenture, to be entered into between Stryker Corporation and U.S. Bank National Association, as trustee.
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4.8
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Form of debt security.*
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4.9
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Form of warrant agreement (including form of warrant certificate).*
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4.10
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|
Form of subscription rights agreement (including form of subscription rights certificate).*
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4.11
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|
Form of stock purchase contract (including form of stock purchase contract certificate).*
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4.12
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|
Form of stock purchase unit agreement (including form of stock purchase unit certificate).*
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5.1
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Opinion of Warner Norcross & Judd LLP.
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5.2
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Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
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12.1
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Statement regarding computation of ratio of earnings to fixed charges.
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23.1
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Consent of Ernst & Young LLP.
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23.2
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Consent of Warner Norcross & Judd LLP (included in exhibit 5.1).
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23.3
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Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in exhibit 5.2).
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24.1
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Power of Attorney (included as part of the signature pages hereto).
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25.1
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Form T-1 Statement of Eligibility of Trustee under the Trust Indenture Act of 1939, as amended, of U.S. Bank National Association, as trustee under the senior
indenture.
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*
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To be filed, if necessary, after the effectiveness of this registration statement as an exhibit to a post-effective amendment hereto or to be filed with the SEC under
the Securities Exchange Act of 1934, as amended.
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II-8
Exhibit 4.6
Stryker Corporation
and
U.S. Bank National Association
Indenture
Dated as of [ ]
Senior Debt Securities
CROSS-REFERENCE SHEET*
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Section of Trust
Indenture Act of
1939, as
amended
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Section of
Indenture
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310(a)(1)
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609
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310(a)(2)
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609
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310(a)(3)
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Not Applicable
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310(a)(4)
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|
Not Applicable
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310(b)
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608, 610
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311(a)
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613
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311(b)
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613
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312(a)
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701, 702
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312(b)
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702
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312(c)
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702
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313(a)
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703
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313(b)
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703
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313(c)
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703
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313(d)
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703
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314(a)
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704
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314(a)(4)
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101, 1004
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314(b)
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Not Applicable
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314(c)(1)
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102
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314(c)(2)
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102
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314(c)(3)
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Not Applicable
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314(d)
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Not Applicable
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314(e)
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|
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102
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|
315(a)
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|
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601
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315(b)
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|
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602
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315(c)
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|
|
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601
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315(d)
|
|
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601
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|
315(e)
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514
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316(a)
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101
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316(a)(1)(A)
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502, 512
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316(a)(1)(B)
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513
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316(a)(2)
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Not Applicable
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316(b)
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508
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316(c)
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104
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317(a)(1)
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503
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317(a)(2)
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504
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317(b)
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1003
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318(a)
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107
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*
|
This cross-reference sheet does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
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TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS
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1
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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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6
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SECTION 103.
|
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Form of Documents Delivered to Trustee.
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6
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SECTION 104.
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Acts of Holders; Record Dates.
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7
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SECTION 105.
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Notices, Etc., to Trustee and Company.
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8
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SECTION 106.
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Notice to Holders; Waiver.
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9
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SECTION 107.
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Conflict with Trust Indenture Act.
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9
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SECTION 108.
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Effect of Headings and Table of Contents.
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9
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SECTION 109.
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Successors and Assigns.
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9
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SECTION 110.
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Separability Clause.
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9
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SECTION 111.
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Benefits of Indenture.
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9
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SECTION 112.
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Governing Law.
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10
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SECTION 113.
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Legal Holidays.
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10
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SECTION 114.
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Language of Notices, Etc.
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10
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SECTION 115.
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Submission to Jurisdiction.
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10
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ARTICLE II SECURITY FORMS
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10
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SECTION 201.
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Forms Generally.
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10
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SECTION 202.
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Form of Legend for Global Securities.
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11
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SECTION 203.
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Form of Trustee’s Certificate of Authentication.
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11
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SECTION 204.
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Securities in Global Form.
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11
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ARTICLE III THE SECURITIES
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12
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SECTION 301.
|
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Amount Unlimited; Issuable in Series.
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12
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SECTION 302.
|
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Denominations.
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15
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SECTION 303.
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|
Execution, Authentication, Delivery and Dating.
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15
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SECTION 304.
|
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Temporary Securities.
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16
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SECTION 305.
|
|
Registration, Registration of Transfer and Exchange.
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17
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SECTION 306.
|
|
Mutilated, Destroyed, Lost and Stolen Securities.
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|
17
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|
SECTION 307.
|
|
Payment of Interest; Interest Rights Preserved.
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18
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SECTION 308.
|
|
Persons Deemed Owners.
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19
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SECTION 309.
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Cancellation.
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|
19
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SECTION 310.
|
|
Computation of Interest.
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19
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SECTION 311.
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CUSIP Numbers
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19
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ARTICLE IV SATISFACTION AND DISCHARGE
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20
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SECTION 401.
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Satisfaction and Discharge of Indenture.
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20
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SECTION 402.
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Application of Trust Money.
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21
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ARTICLE V REMEDIES
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21
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SECTION 501.
|
|
Events of Default.
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21
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SECTION 502.
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|
Acceleration of Maturity; Rescission and Annulment.
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22
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|
SECTION 503.
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee.
|
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23
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SECTION 504.
|
|
Trustee May File Proofs of Claim.
|
|
23
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|
SECTION 505.
|
|
Trustee May Enforce Claims Without Possession of Securities.
|
|
24
|
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SECTION 506.
|
|
Application of Money Collected.
|
|
24
|
|
SECTION 507.
|
|
Limitation on Suits.
|
|
24
|
|
SECTION 508.
|
|
Unconditional Right of Holders to Receive Principal, Premium and Interest.
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|
25
|
|
SECTION 509.
|
|
Restoration of Rights and Remedies.
|
|
25
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|
SECTION 510.
|
|
Rights and Remedies Cumulative.
|
|
25
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|
SECTION 511.
|
|
Delay or Omission Not Waiver.
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|
25
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SECTION 512.
|
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Control by Holders.
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26
|
|
SECTION 513.
|
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Waiver of Past Defaults.
|
|
26
|
|
SECTION 514.
|
|
Undertaking for Costs.
|
|
26
|
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SECTION 515.
|
|
Waiver of Usury, Stay or Extension Laws.
|
|
26
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|
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ARTICLE VI THE TRUSTEE
|
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27
|
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SECTION 601.
|
|
Certain Duties and Responsibilities.
|
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27
|
|
SECTION 602.
|
|
Notice of Defaults.
|
|
27
|
|
SECTION 603.
|
|
Certain Rights of Trustee.
|
|
27
|
|
SECTION 604.
|
|
Not Responsible for Recitals or Issuance of Securities.
|
|
28
|
|
SECTION 605.
|
|
May Hold Securities.
|
|
28
|
|
SECTION 606.
|
|
Money Held in Trust.
|
|
28
|
|
SECTION 607.
|
|
Compensation and Reimbursement.
|
|
29
|
|
SECTION 608.
|
|
Conflicting Interests.
|
|
29
|
|
SECTION 609.
|
|
Corporate Trustee Required; Eligibility.
|
|
29
|
|
SECTION 610.
|
|
Resignation and Removal; Appointment of Successor.
|
|
29
|
|
SECTION 611.
|
|
Acceptance of Appointment by Successor.
|
|
30
|
|
SECTION 612.
|
|
Merger, Conversion, Consolidation or Succession to Business.
|
|
31
|
|
SECTION 613.
|
|
Preferential Collection of Claims Against Company.
|
|
31
|
|
SECTION 614.
|
|
Appointment of Authenticating Agent.
|
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32
|
|
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|
|
ARTICLE VII HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
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33
|
|
SECTION 701.
|
|
Company to Furnish Trustee Names and Addresses of Holders.
|
|
33
|
|
SECTION 702.
|
|
Preservation of Information; Communications to Holders.
|
|
34
|
|
SECTION 703.
|
|
Reports by Trustee.
|
|
34
|
|
SECTION 704.
|
|
Reports by Company.
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|
34
|
|
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|
|
ARTICLE VIII MERGER, CONSOLIDATION, SALE, ASSIGNMENT, TRANSFER, LEASE OR CONVEYANCE
|
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34
|
|
SECTION 801.
|
|
Company May Merge, Etc., Only on Certain Terms.
|
|
34
|
|
SECTION 802.
|
|
Successor Substituted.
|
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35
|
|
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|
|
ARTICLE IX SUPPLEMENTAL INDENTURES
|
|
35
|
|
SECTION 901.
|
|
Supplemental Indentures Without Consent of Holders.
|
|
35
|
|
SECTION 902.
|
|
Supplemental Indentures With Consent of Holders.
|
|
36
|
|
SECTION 903.
|
|
Execution of Supplemental Indentures.
|
|
37
|
|
SECTION 904.
|
|
Effect of Supplemental Indentures.
|
|
37
|
|
SECTION 905.
|
|
Conformity with Trust Indenture Act.
|
|
37
|
|
SECTION 906.
|
|
Reference in Securities to Supplemental Indentures.
|
|
38
|
|
|
|
|
ARTICLE X COVENANTS
|
|
38
|
|
SECTION 1001.
|
|
Payment of Principal, Premium and Interest.
|
|
38
|
|
SECTION 1002.
|
|
Maintenance of Office or Agency.
|
|
38
|
|
SECTION 1003.
|
|
Money for Securities Payments to Be Held in Trust.
|
|
38
|
|
SECTION 1004.
|
|
Statement by Officers as to Default.
|
|
39
|
|
SECTION 1005.
|
|
Existence.
|
|
39
|
|
SECTION 1006.
|
|
Maintenance of Properties.
|
|
40
|
|
SECTION 1007.
|
|
Payment of Taxes and Other Claims.
|
|
40
|
|
SECTION 1008.
|
|
Waiver of Certain Covenants.
|
|
40
|
|
SECTION 1009.
|
|
Additional Amounts
|
|
40
|
|
|
|
|
ARTICLE XI REDEMPTION OF SECURITIES
|
|
41
|
|
SECTION 1101.
|
|
Applicability of Article.
|
|
41
|
|
SECTION 1102.
|
|
Election to Redeem; Notice to Trustee.
|
|
41
|
|
SECTION 1103.
|
|
Selection by Trustee of Securities to Be Redeemed.
|
|
41
|
|
SECTION 1104.
|
|
Notice of Redemption.
|
|
42
|
|
|
|
|
|
|
|
SECTION 1105.
|
|
Deposit of Redemption Price.
|
|
42
|
|
SECTION 1106.
|
|
Securities Payable on Redemption Date.
|
|
42
|
|
SECTION 1107.
|
|
Securities Redeemed in Part.
|
|
43
|
|
|
|
|
ARTICLE XII SINKING FUNDS
|
|
43
|
|
SECTION 1201.
|
|
Applicability of Article.
|
|
43
|
|
SECTION 1202.
|
|
Satisfaction of Sinking Fund Payments with Securities.
|
|
43
|
|
SECTION 1203.
|
|
Redemption of Securities for Sinking Fund.
|
|
43
|
|
|
|
|
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE
|
|
44
|
|
SECTION 1301.
|
|
Company’s Option to Effect Defeasance or Covenant Defeasance.
|
|
44
|
|
SECTION 1302.
|
|
Defeasance and Discharge.
|
|
44
|
|
SECTION 1303.
|
|
Covenant Defeasance.
|
|
44
|
|
SECTION 1304.
|
|
Conditions to Defeasance or Covenant Defeasance.
|
|
44
|
|
SECTION 1305.
|
|
Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions.
|
|
46
|
|
SECTION 1306.
|
|
Reinstatement.
|
|
46
|
|
|
|
|
|
EXHIBIT A
|
|
Form of Face of Security
|
|
|
|
EXHIBIT A1
|
|
Form of Reverse of Security
|
|
|
INDENTURE, dated as of
, between Stryker Corporation, a corporation duly organized and existing under the laws of the State of Michigan (herein called
the “Company”), having its principal office at 2825 Airview Boulevard, Kalamazoo, Michigan and U.S. Bank National Association, a nationally chartered banking association, as Trustee (herein called the “Trustee”).
R
ECITALS
OF
T
HE
C
OMPANY
The Company has duly authorized the execution and delivery of 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”), which may be convertible into or exchangeable for any securities of any persons (including the Company), to be issued in one or more series as in this
Indenture provided.
All things necessary to make this Indenture a valid and legally binding agreement of the Company, in
accordance with its terms, have been done.
NOW
,
THEREFORE
,
THIS
INDENTURE
WITNESSETH
:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE I
DEFINITIONS
SECTION 101.
Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting principles, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting
principles as are generally accepted as consistently applied by the Company at the date of such computation;
(4) unless the context otherwise requires, any reference to an “Article”, a “Section” or an “Exhibit” refers to an Article, a Section or an Exhibit, as the case may be, of or to this Indenture; and
(5) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used
principally in Article VI and Article XIII, are defined in those Articles.
“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.
“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.
“Authorized Newspaper” means a newspaper, in the English language
or in an official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
“Board of Directors” means either the board of directors of the
Company or any duly authorized committee of that board of directors.
“Board Resolution” means a copy of a
resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day”, when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday that is
not a day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close.
“Commission” means the United States Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument the United States Securities and
Exchange 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 Person shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request” or
“Company Order” means a written request or order signed in the name of the Company by its Chief Executive Officer, its President or a Vice President, and by its Chief Financial Officer, Treasurer, an Assistant Treasurer, its Controller or
an Assistant Controller, its Secretary or an Assistant Secretary, and delivered to the Trustee.
“Corporate Trust
Office” means the office of the Trustee at which at any particular time its corporate trust business shall be administered, which as of the date hereof is located at 40 Pearl Street NW, Suite 838, Grand Rapids, MI 49503, Attn: Corporate Trust
Services.
“corporation” means a corporation, association, company, limited liability company, joint-stock company
or business trust.
“covenant defeasance” has the meaning specified in Section 1303.
“Defaulted Interest” has the meaning specified in Section 307.
“defeasance” has the meaning specified in Section 1302.
2
“Depositary” means, with respect to Securities of any series issuable in whole or
in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 301, which shall initially be the Depositary Trust
Company.
“Event of Default” has the meaning specified in Section 501.
“Exchange Act” means the United States Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended
from time to time.
“Expiration Date” has the meaning specified in Section 104.
“Global Security” means a Security that evidences all or part of the Securities of any series and bears the legend set forth in
Section 202 (or such legend as may be specified as contemplated by Section 301 for such Securities).
“Government Obligation” has the meaning specified in Section 1304.
“Holder” means the
Person in whose name the Security is registered in the Security Register.
“Indenture” means this instrument as
originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular
series of Securities established as contemplated by Section 301.
“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.
“Investment Company Act” means the United States Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.
“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.
“Notice of Default” means a written notice of the kind specified in Section 501(4).
“Officers’ Certificate” means a certificate signed by the Chief Executive Officer, the President or a Vice President, and by the Chief Financial Officer, Treasurer, an Assistant Treasurer,
the Controller or an Assistant Controller, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee. One of the officers signing an Officers’ Certificate given pursuant to Section 1004 shall be the principal
executive, financial or accounting officer of the Company.
“Opinion of Counsel” means a written opinion of counsel,
which may be an employee of or 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.
3
“Outstanding”, when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under this Indenture (including Securities held by the Company or an Affiliate),
except:
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(2) 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;
(3) Securities, except to the extent provided in Sections 1302 and 1303, with respect to which the Company has effected defeasance or covenant defeasance as provided in Article XIII; and
(4) Securities that 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, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date or whether a quorum is present at a meeting of Holders
of Securities, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of such date upon acceleration of the Maturity
thereof to such date pursuant to Section 502, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security that shall be deemed to be Outstanding
shall be the amount as specified or determined as contemplated by Section 301, (C) the principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S.
dollar equivalent, determined as of such date in the manner provided as contemplated by Section 301, of the principal amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount
determined as provided in such Clause), and (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver, or other action, or upon any such determination as to the presence of a quorum, only Securities
that a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
“Paying Agent” means any Person authorized by the Company to pay the principal of or any premium or interest on any Securities on
behalf of the Company, which shall initially be the Trustee.
“Person” means any individual, corporation,
partnership, limited liability company, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment”, when used with respect to the Securities of any series, means the place or places specified in accordance with Section 301 where the principal of and any premium and
interest on the Securities of that series are payable.
4
“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.
“Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“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.
“Responsible Officer”, when used with respect to
the Trustee, means any vice president, the treasurer, any assistant treasurer, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject
and who shall have responsibility for the administration of this Indenture.
“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.
“Securities Act”
means the United States Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
“Security Register” and “Security Registrar” have the respective meanings specified in Section 305.
“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 a
corporation, partnership or other legal entity of which, in the case of a corporation, more than 50% of the outstanding voting stock is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or
more other Subsidiaries or, in the case of any partnership or other legal entity, more than 50% of the ordinary capital interests is, at the time, directly or indirectly owned or controlled by the Company or by one or more other Subsidiaries. For
the purposes of this definition, “voting stock” means the equity interest that ordinarily has voting power for the election of directors, managers or trustees of an entity, or persons performing similar functions, whether at all times or
only so long as no senior class of equity interest has such voting power by reason of any contingency.
“Trust Indenture
Act” means the United States Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed;
provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust
Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
5
“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.
“United States Alien” means any Person who, for United States Federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign estate or trust, or a foreign partnership one or more of the members of which is, for United States Federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust.
“Vice President”, when used with respect
to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president”.
SECTION 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 such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or
opinion shall be given in the form of an Officers’ Certificate, if to be given by an officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for certificates provided for in Section 1004) shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, 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 an officer of the
Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or
6
representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in
the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104.
Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given,
made 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 agent duly appointed in writing. 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.
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 his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
The principal amount and serial numbers of Securities held by any Person, and the date of holding the same,
shall be proved by the Security Register.
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.
The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series,
provided,
that the Company may not set a record date for, and the provisions of
this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph.
If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on
such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date;
provided,
that no such action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall
7
cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series
in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to institute proceedings
referred to in Section 507(2) or (iv) any direction referred to in Section 512, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of
such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date;
provided,
that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no
effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section 106.
With respect to
any record date set pursuant to this Section, the party hereto that sets such record date may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day;
provided
that
no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 106, on or prior to
the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto that set such record date shall be deemed to have initially designated the 180th day after such
record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such
Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
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,
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or
filed in writing (which may be via facsimile) to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Services
,
or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office specified in the first paragraph of this instrument, Attention: General Counsel, or at any other address previously furnished in writing to the Trustee by the Company.
8
SECTION 106.
Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this Indenture provides for notice of any event to Holders of Securities, such notice
shall be sufficiently given to Holders of Securities if in writing and mailed, first-class postage prepaid, to each Holder of a Security affected by such event, at the address of such Holder as it appears in the Security Register, not later than the
latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice.
In case by
reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders of Securities by mail, then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. In any case where notice to Holders of Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a
Security 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 of Securities shall be filed
with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
SECTION 107.
Conflict with Trust Indenture Act.
This Indenture shall incorporate and be governed by the
provisions of the Trust Indenture Act that are required to be part of and to govern indentures qualified under the Trust Indenture Act. 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 latter provision 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.
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 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 and their
successors hereunder, and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
9
SECTION 112.
Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the law of the State of New York.
SECTION 113.
Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date, Redemption Date or sinking fund payment date or at the Stated Maturity or
Maturity, as the case may be.
SECTION 114.
Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the country of publication.
SECTION 115.
Submission to
Jurisdiction.
The Company irrevocably submits to the non-exclusive jurisdiction of any federal or state court in the City,
County and State of New York and any appellate court from any thereof, in any legal suit, action or proceeding based on or arising under the Securities or this Indenture and agrees that all claims in respect of such suit or proceeding may be
determined in any such court. The Company irrevocably waives, to the fullest extent permitted by law, any objection to any such suit, action or proceeding in such courts, whether on the grounds of venue, residence or domicile or the defense of an
inconvenient forum or objections to personal jurisdiction with respect to the maintenance of such legal suit, action or proceeding. The Company agrees that the final judgment in any such suit, action or proceeding brought in such court shall be
conclusive and binding upon the Company and may be enforced in any court to the jurisdiction of which the Company is subject by a suit upon such judgment.
ARTICLE II
SECURITY FORMS
SECTION 201.
Forms Generally.
The Securities of each series shall be in substantially the forms set forth in Exhibits A and A1 or in such other form (including temporary or permanent global form) as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities as evidenced by their
execution thereof. 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 (or any such temporary global Security).
10
The definitive Securities shall be printed, lithographed or engraved on steel engraved
borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
SECTION 202.
Form of Legend for Global Securities.
Unless otherwise
specified as contemplated by Section 301 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
THIS
S
ECURITY
IS
A
G
LOBAL
S
ECURITY
WITHIN
THE
MEANING
OF
THE
I
NDENTURE
HEREINAFTER
REFERRED
TO
AND
IS
REGISTERED
IN
THE
NAME
OF
A
D
EPOSITARY
OR
A
NOMINEE
THEREOF
. T
HIS
S
ECURITY
MAY
NOT
BE
EXCHANGED
IN
WHOLE
OR
IN
PART
FOR
A
S
ECURITY
REGISTERED
,
AND
NO
TRANSFER
OF
THIS
S
ECURITY
IN
WHOLE
OR
IN
PART
MAY
BE
REGISTERED
,
IN
THE
NAME
OF
ANY
P
ERSON
OTHER
THAN
SUCH
D
EPOSITARY
OR
A
NOMINEE
THEREOF
,
EXCEPT
IN
THE
LIMITED
CIRCUMSTANCES
DESCRIBED
IN
THE
I
NDENTURE
.
SECTION 203.
Form of Trustee’s Certificate of Authentication.
The Trustee’s certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
|
|
|
U.S. Bank National Association
|
|
As Trustee
|
|
|
|
By:
|
|
Authorized Signatory
|
|
|
|
Dated:
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SECTION 204.
Securities in Global Form.
If Securities of or within a series are issuable in global form, as specified as contemplated by Section 301, then, notwithstanding
Clause (3) of Section 301 and the provisions of Section 302, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate
amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon instructions given by such Person or Persons as shall be specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section 303 or Section 304. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order. If a Company Order pursuant to Section 303 or Section 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any Security represented by a Security in global form if such
Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global from together with written instructions (which need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) with
11
regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 201 and 307, unless otherwise specified as contemplated by Section 301, payment of
principal of and any premium and interest on any Security in permanent global form shall be made to the Person or Persons specified therein.
ARTICLE III
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 in 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 issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
(3) if other than denominations of $2,000 or any integral multiple of $1,000
,
the denominations in which any Securities of the series shall be issuable;
(4) the date or dates upon which the principal of the Securities of the series is payable and whether the Stated Maturity may be extended or the method used to determine or extend those dates;
(5) the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate
or rates shall be determined, whether such rate or rates may be reset, the date or dates from which any such interest shall accrue or the method used for determining those dates, the Interest Payment Dates on which any such interest shall be payable
and the Regular Record Date for the interest payable on any Securities on any Interest Payment Date or method by which such date or dates shall be determined;
(6) the basis for calculating interest if other than a 360-day year of twelve 30-day months;
(7) the right, if any, to extend the interest payment periods and the duration of any such deferral period;
(8) whether the amount of payments of principal (or premium, if any) or interest, if any, on the Securities of the series may
be determined with reference to an index, formula or other method (which index, formula or method may be based, without
12
limitation, on one or more currencies, commodities, equity indices or other indices), and the manner in which such amounts shall be determined;
(9) the place or places where, subject to the provisions of Section 1002, the principal of and any premium, if any, and
interest, if any, on Securities of the series shall be payable, where any Securities of the series may be surrendered for registration of transfer, where Securities of the series may be surrendered for exchange, where Securities of the series that
are convertible or exchangeable may be surrendered for conversion or exchange, as applicable, and notices and demands to or upon the Company in respect of the Securities of the series and this Indenture may be served;
(10) the rate or rates of amortization of Securities of the series, if any;
(11) the obligation or discretion, if any, of the Company to redeem, repay or purchase any Securities of the series pursuant
to any sinking fund or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions upon which, any Securities of the series shall be redeemed, repaid
or purchased, in whole or in part, pursuant to such obligation;
(12) the terms and conditions, if any,
regarding the mandatory conversion or exchange of Securities;
(13) the period or periods within which, the
price or prices at which, and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election by the
Company to redeem the Securities shall be evidenced;
(14) any restriction or condition on the transferability
of Securities of a particular series;
(15) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502;
(16) the currency or currencies, including composite 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 and the manner of determining the equivalent thereof in the currency of the United States of America for purposes of
the definition of “Outstanding” in Section 101;
(17) 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 the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and
the amount so payable (or the manner in which such amount shall be determined);
(18) provisions, if any,
granting special rights to Holders of the Securities upon the occurrence of specified events;
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(19) any addition to or change in the Events of Default which applies to any
Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 502;
(20) any addition to or change in the definitions set forth in Article I that apply to the Securities of the series, and any
addition to or change in the covenants set forth in Article X which applies to Securities of the series;
(21)
if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 1302 or Section 1303 or both such Sections, any variations of such Sections and, if other than by a Board Resolution,
the manner in which any election by the Company to defease such Securities shall be evidenced;
(22) the terms,
if any, upon which Holders may convert or exchange the Securities into or for the Company’s common stock, preferred stock or other securities or property;
(23) whether any Securities of the series are to be issuable initially in temporary global form and whether any Securities of
the series are to be issuable in permanent global form and, if so, whether beneficial owners of interests in any such permanent global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 305;
(24) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global
Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 202 and any circumstances in addition to or in lieu of those set forth in the fourth paragraph
of Section 305 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(25) the appointment of any paying agents,
authenticating agents, transfer agents, registrars or other agents, if other than the Trustee;
(26) the Person
to whom any interest on any 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,
and the extent to which, or the manner in which, any interest payable on a temporary global Security on an Interest Payment Date will be paid, if other than in the manner provided in Section 304;
(27) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of
any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due
and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be
determined);
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(28) whether, under what circumstances and the Currency in which the Company
will pay additional amounts as contemplated by Section 1009 on the Securities of the series to any Holder who is not a United States Person(s) (including any modification to the definition of such term) in respect of any tax, assessment or
governmental charge and, if so, whether the Company will have the option to redeem such Securities rather than pay such additional amounts (and the terms of any such option); and
(29) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as
permitted by Section 901(5)).
All Securities of such series shall be substantially identical except as to denomination
and except as may otherwise be provided in 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.
SECTION 302.
Denominations.
Unless otherwise provided as contemplated by Section 301 with respect to the Securities of any series, any Securities of such series, other than Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $2,000 or any integral multiple of $1,000.
SECTION 303.
Execution, Authentication,
Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chief Executive Officer, its
President, its Chief Financial Officer, its Treasurer or one of its Vice Presidents, under its corporate seal reproduced thereon 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, and the Trustee in accordance with the Company Order shall authenticate and
deliver such Securities. If the forms or terms of the Securities of the series have been established by 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:
(1) if the forms of such Securities have been established by or pursuant to Board Resolution as permitted by
Section 201, that such form have been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture; and
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(3) 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, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the two preceding paragraphs, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraphs
at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
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. 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, 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, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as
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 that series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series
upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and like aggregate principal amount and tenor.
Until exchanged in full as hereinafter provided, the temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder.
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SECTION 305.
Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency to be maintained by the Company in accordance with Section 1002 a register
(being the combined register of the Security Registrar and all transfer agents designated pursuant to Section 1002 for the purpose of registration of transfer of Securities and sometimes collectively referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and the registration 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 a series at the office or agency of the Company maintained pursuant to Section 1002 for such purpose in a Place of Payment for that 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 like tenor and aggregate principal amount.
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 like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities that 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 or any transfer agent) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar or any transfer agent duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and
specified tenor) are to be redeemed in part, the Company shall not be required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period
beginning at the opening of business 15 days before any selection of Securities of that series to be redeemed and ending at the close of business on the day of the mailing of the relevant notice of redemption or (B) 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.
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 the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new
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Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
Notwithstanding the provisions of the previous two paragraphs, 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.
SECTION 307.
Payment of Interest; Interest Rights Preserved.
Except as 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 at the close of business on the Regular Record Date for such interest.
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 (1) or (2) below:
(1) 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 given to each Holder of Securities of such series in the manner
set forth in Section 106, 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
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registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on 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.
Subject to the foregoing provisions of this
Section and Section 305, 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 as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 305 and Section 307) any 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.
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 cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and 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 cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as 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.
SECTION 311.
CUSIP Numbers
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use such “CUSIP” numbers in notices of redemption as a
convenience to Holders;
provided
that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be
placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will notify the Trustee of any change “CUSIP” numbers.
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ARTICLE IV
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 any right to receive additional amounts, as provided in Section 1009), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) 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 the payment of which 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
(B) 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 redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of Section 401(1)(B)(i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an
amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has
paid or caused to be paid all other sums payable hereunder by the Company; and
(3) the Company has delivered
to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture 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 (B) of Clause (1) of this Section, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive such satisfaction and discharge.
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SECTION 402.
Application of Trust Money.
Subject to the 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 any premium and interest for the payment of which such money has been deposited with the Trustee.
ARTICLE V
REMEDIES
SECTION 501.
Events of Default.
“Event of Default”, wherever
used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any Security of that series at its Maturity and (if so
established as contemplated by Section 301 in respect of that series), in the case of technical or administrative difficulties only if such default persists for a period of five days; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series, in the
case of technical or administrative difficulties only if such a default persists for a period of five days; or
(4) 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 series of Securities other than that series), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in 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
(5) the entry by a court having
jurisdiction in the premises of (A) a decree or order for relief in respect of the Company 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 as 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 of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any
such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or
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(6) the commencement by the Company 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, of the consent by it to the entry of a decree or order for relief in respect of
the Company 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 of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of that series.
SECTION 502.
Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(5) or 501(6)) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of
that series may declare the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms
thereof) to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an
Event of Default specified in Section 501(5) or 501(6) with respect to Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue
Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due
and payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and
before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has
paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) 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 any interest thereon at the rate or rates prescribed therefor in such Securities,
(C) 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
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(D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;
and
(2) 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.
SECTION 503.
Collection of
Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) 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
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof, in the case of technical or administrative difficulties only if such a default persists for a period of five days,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and
interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, 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 Securities and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If 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 reasonably necessary 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 any judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized 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
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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.
No provision of this Indenture 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;
provided
,
however
, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a
creditors’ or other similar committee.
SECTION 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, 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 any premium 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:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium 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 any premium and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company or any other Person or Persons entitled thereto.
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
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with
respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
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(3) 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;
(4) the Trustee
for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60–day period by the Holders of a majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
SECTION 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 any premium and (subject to Sections 305 and 307) interest on such Security on the respective Stated 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.
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.
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SECTION 512.
Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series,
provided
that:
(1) such direction shall not be in conflict with any rule of law or with this Indenture, and
(2) 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 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:
(1) in the payment of the principal of or
any premium or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof
which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any 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.
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, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs including reasonable attorneys’ fees and expenses against any such party
litigant, in the manner and to the extent provided in the Trust Indenture Act;
provided
that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company.
SECTION 515.
Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE VI
THE TRUSTEE
SECTION 601.
Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602.
Notice
of Defaults.
If a default occurs hereunder with respect to Securities of any series, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the extent provided by the Trust Indenture Act;
provided
,
however
, that in the case of any default of the character specified in Section 501(4) 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, the term “default” means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
SECTION 603.
Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may conclusively rely and shall be fully 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 (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company
Request or Company Order, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(3) 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;
(4) the Trustee may consult with counsel of its own selection and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) 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;
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(6) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(7) 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;
(8) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in
good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(9) the Trustee shall not be deemed to have notice of any Event of Default or any event which, after notice or lapse of time or both, would become an Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture; and
(10) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without
limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and the Person employed to act hereunder.
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. Neither the Trustee nor any Authenticating Agent shall 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 Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 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.
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SECTION 607.
Compensation and Reimbursement.
The Company agrees:
(1) 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);
(2) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as shall be determined to have been caused by its own negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability, claim, damage 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.
SECTION 608.
Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series.
SECTION 609.
Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee
hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000 and, is subject to supervision or
examination by federal, state or District of Columbia authority and is not otherwise ineligible under Section 310(a)(5) of the Trust Indenture Act. If any such Person publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person 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 the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this Article.
SECTION 610.
Resignation and Removal; Appointment of
Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
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.
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The Trustee may be removed at any time with respect to the Securities of any series by Act
of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with
Section 608 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, (A) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (B) 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.
If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to
the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable requirements of Section 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 of Securities of such series 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.
The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 106. 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.
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;
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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. The successor Trustee shall mail notice of its succession to
the Holders.
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 necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company
or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any and
all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
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.
SECTION 613.
Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of Section 311 of the Trust Indenture Act, but only to the extent therein specified, regarding the collection of claims against the Company (or any such other obligor). For purposes of Section 311(b)(4) and (6) of
such Act, the following terms shall mean:
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(a) “cash transaction” means any transaction in which full payment for goods or
securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand; and
(b) “self-liquidating paper” means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods,
wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.
SECTION 614.
Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, 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. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, and a copy of such evidence shall be promptly furnished to the Company. 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 or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an
Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any time 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 give notice of such appointment in the manner provided in Section 106 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
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The Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 607.
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 alternative certificate of authentication in the following form:
This is one of the Securities of the
series designated therein referred to in the within-mentioned Indenture.
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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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If all of the Securities of a series may not be originally issued at one time,
and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so
requested by the Company in writing (which writing need not comply with Section 102 and need not be accompanied by an Opinion of Counsel), shall appoint in accordance with this Section an Authenticating Agent having an office in a Place of
Payment designated by the Company with respect to such series of Securities.
ARTICLE VII
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701.
Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, not later than
15 days after each Regular Record Date or, in the case of any series of Securities on which semi-annual interest is not payable, not more than 15 days after such semi-annual dates specified by the Trustee, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities of each series as of the Regular Record Date or such semi-annual date, as the case may be, and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
excluding
from
any such list names and addresses received by the Trustee in its capacity as Security Registrar.
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SECTION 702.
Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as 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.
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 the Trust Indenture Act.
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 any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703.
Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.
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 or delisted therefrom.
SECTION 704.
Reports by Company.
The Company shall file with the Trustee
and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to the Trust Indenture
Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE VIII
MERGER, CONSOLIDATION, SALE, ASSIGNMENT, TRANSFER, LEASE OR CONVEYANCE
SECTION 801.
Company
May Merge, Etc., Only on Certain Terms.
The Company shall not merge with or into or consolidate with any other Person or
sell, assign, transfer, lease or convey all or substantially all of its properties and assets to any Person (other than a direct or indirect wholly-owned subsidiary of the Company), and the Company shall not permit any Person (other than a direct or
indirect wholly-owned subsidiary of the Company) to merge with or into or consolidate with the Company or sell, assign, transfer, lease or convey all or substantially all of its properties and assets to the Company, unless:
(1) the Company is the surviving corporation or, in case the Company shall merge into or consolidate with another Person or
sell, assign, transfer, lease or convey all or substantially all of its properties and assets to any Person, the Person into which the Company is merged or formed by such consolidation or the Person which acquires by sale, assignment, transfer or
conveyance, or which leases, all or substantially all of its properties and assets of the Company shall be a corporation,
34
partnership or trust, 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 any premium and interest (including all additional amounts, if any payable pursuant to
Section 1009) 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;
(2) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the
Company or any Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of 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
(3) 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 merger of the Company into, or consolidation of the Company with, any other Person or
any sale, assignment, transfer, lease or conveyance of all or substantially all of the properties and assets of the Company in accordance with Section 801, the successor Person into which the Company is merged or formed by such consolidation or
to which such sale, assignment, transfer, lease or conveyance is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor 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 IX
SUPPLEMENTAL INDENTURES
SECTION 901.
Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another
Person to the Company and the assumption by any such successor of the covenants, agreements and obligations of the Company herein and in the Securities; or
(2) 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 such series) or to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such
additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or
35
(4) 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 (A) shall neither (i) 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 (ii) modify the rights of the Holder of any such Security with respect to such provision or (B) shall become effective only when there is no such Security Outstanding; or
(5) to secure the Securities; or
(6) to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or
(7) 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; or
(8) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided that such action pursuant to this Clause (8) shall not adversely affect the
interests of the Holders of Securities of any series in any material respect; or
(9) to supplement any
provisions of this Indenture necessary to defease and discharge the Securities of any series,
provided
that such action does not adversely affect the interests of the Holders of the Securities in any material respect; or
(10) to comply with the rules or regulations of any securities exchange or automated quotation system on which any Securities
are listed or traded; or
(11) to add, change or eliminate any provisions of this Indenture in accordance with
any amendments to the Trust Indenture Act,
provided
that such action does not adversely affect the interests of the Holders of the Securities in any material respect.
SECTION 902.
Supplemental Indentures With Consent of Holders.
With the
consent of the Holders of not less than 50% 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:
(1) change the Stated Maturity of the principal of, or any installment of principal of or interest
on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or change any obligation of the Company to pay additional amounts pursuant to Section 1009 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the amount of the principal of an Original Issue Discount Security or any other Security which would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502, or change
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any Place of Payment where, or the coin or currency in which, any Security or any premium or 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, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(3) make any change that adversely affects the right to convert or exchange any Security or decreases the conversion or exchange rate or increases the conversion price of any convertible or exchangeable
Security, or
(4) modify any of the provisions of this Section, Section 513 or Section 1008, 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 and Section 1008, or the deletion of this proviso, in accordance with
the requirements of Sections 611 and 901(7).
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be
necessary for any Act of Holders of Securities 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.
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.
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SECTION 906.
Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company 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.
ARTICLE X
COVENANTS
SECTION 1001.
Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of Holders of each series of Securities that it will duly and punctually pay the principal
of and any premium and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture.
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 any such office or agency. If at any time the Company shall
fail to maintain any such required office or agency in respect of any series of Securities or shall fail to furnish the Trustee with the address thereof, such presentations and surrenders of Securities of that series may be made and notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the same as its agent to receive such respective presentations, surrenders, notices and demands. 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 or any premium 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 sufficient to pay
the principal and any premium or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to each due date of the
principal of or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal and any premium or interest so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
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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 (1) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (2) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal and any premium or
interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease;
provided
,
however
, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper in each Place of Payment, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004.
Statement by Officers as to Default.
The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers’ Certificate, stating whether or not to the best knowledge of the signers thereof the Company is in default in
the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
SECTION 1005.
Existence.
Subject to Article VIII, 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 ability of the Company to make payments hereunder.
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SECTION 1006.
Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its business or the business of any Subsidiary 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 or the business of any Subsidiary and not disadvantageous in any material respect to the ability of the Company
to make payments hereunder.
SECTION 1007.
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 the Company or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary, and (2) all lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Company or any Subsidiary;
provided
,
however
, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith.
SECTION 1008.
Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities of such series, the Company may, with respect to the
Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 301(12), 901(2) or 901(7) for the benefit of the Holders of such series if before
the time for such compliance the Holders of at least 50% in 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, 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.
SECTION 1009.
Additional Amounts
If the Securities of a series provide for the payment of additional amounts, the Company will pay to the Holder of any
Security of such series additional amounts as provided therein. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security of any series or the net
proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of additional amounts provided for in this Section to the extent that, in such context, additional amounts are,
were or would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of additional amounts (if applicable) in any provisions hereof shall not be construed as excluding additional amounts in those
provisions hereof where such express mention is not made.
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ARTICLE XI
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 such Securities) 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 a Board Resolution
or in another manner specified as contemplated by Section 301 for such Securities. In case of any redemption at the election of the Company of less than all the Securities of any series (including any such redemption affecting only a single
Security), the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed (unless all of the Securities of a specified tenor are to be redeemed). In the case of any redemption of Securities (i) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, or (ii) pursuant to an election of the Company which is subject to a condition specified in the terms of such Securities, the Company shall
furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction or condition.
SECTION 1103.
Selection
by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all the
Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities 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 or of the
principal amount of global securities of such series. If less than all of the Securities of such series and of a specified tenor are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence. If so specified in the Securities of a series, partial redemptions
must be in an amount not less than $1,000,000 principal amount of Securities.
The Trustee shall promptly notify the Company
in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
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.
41
SECTION 1104.
Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106 to the Holders of Securities to be redeemed not less than 30
nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding
Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less
than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and,
if applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places
where such Securities are to be surrendered for payment of the Redemption Price,
(6) that the redemption is
for a sinking fund, if such is the case, and
(7) applicable CUSIP numbers, if any.
A notice of redemption published as contemplated by Section 106 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the
Company’s request, by the Trustee in the name and at the expense of the Company.
SECTION 1105.
Deposit of Redemption Price.
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 sufficient to 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 on Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of
42
such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any
premium 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 only in part shall be surrendered at a Place of
Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and 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.
ARTICLE XII
SINKING FUNDS
SECTION 1201.
Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of any Securities 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 such Securities is herein referred to as an “optional sinking fund payment”. If provided for by the terms of any
Securities, 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 as provided for by the terms of such Securities.
SECTION 1202.
Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply
as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities
so to be redeemed, 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 45 days prior (unless a shorter period
shall be satisfactory to the Trustee) to each sinking fund payment date for any Securities, 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 pursuant to
43
Section 1202 and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days prior to 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.
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301.
Company’s Option to Effect Defeasance or Covenant Defeasance.
The Company may at its option, at any time, elect to have either Section 1302 or Section 1303 applied to the Outstanding Securities
of any series upon compliance with the conditions set forth below in this Article XIII.
SECTION 1302.
Defeasance and Discharge.
Upon the Company’s exercise of the option provided in Section 1301 applicable to this Section, the Company shall be
deemed to have been discharged from its obligations with respect to the Outstanding Securities of any series on the date the conditions set forth in Section 1304 are satisfied (hereinafter, “defeasance”). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all its other obligations under the Securities of such series and
this Indenture insofar as the Securities of such series are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of the Securities of such series to receive, solely from the trust fund described in Section 1304 and as more fully set forth in such Section, payments in respect of the principal of and
any premium and interest on the Securities of such series when such payments are due, (B) the Company’s obligations with respect to such Securities under Sections 305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this Article XIII. Subject to compliance with this Article XIII, the Company may exercise its option under this Section 1302 notwithstanding the prior exercise of its option under
Section 1303.
SECTION 1303.
Covenant Defeasance.
Upon the Company’s exercise of the option provided in Section 1301 applicable to this Section, (i) the Company shall be released from its obligations with respect to the Securities of such
Series under Section 801, Sections 1004 through 1009, inclusive, and any covenants provided pursuant to Section 301(12), 901(2) or 901(7) for the benefit of the Holders of such Securities and (ii) the occurrence of an event specified
in Sections 501(4), (5), (6) or (7) shall not be deemed to be an Event of Default on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter, “covenant defeasance”). For this purpose, such
covenant defeasance means that the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section or Clause whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or Clause or by reason of any reference in any such Section or Clause to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION 1304.
Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 1302 or Section 1303 to the then Outstanding Securities of
any series:
(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or
another trustee satisfying the requirements of Section 609 who shall agree to comply with the provisions of this Article XIII applicable to it) as trust funds
44
in trust for the purpose of making the following payments specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series,
(A) money in an amount, or (B) Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of
,
premium, if any, and each installment of interest on the Securities on the Stated Maturity of such principal or installment of
interest in accordance with the terms of this Indenture and of the Securities of such series. For this purpose, “Government Obligations” means, with respect to any series of Securities, securities that are (x) direct obligations of
the government that issued the currency in which such series is denominated (or, if such series is denominated in euro, the direct obligations of any government that is a member of the European Monetary Union) for the payment of which its full faith
and credit is pledged or (y) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of such government the payment of which is unconditionally guaranteed as a full faith and credit obligation by such
government, which, in either case, are not callable or redeemable at the option of the issuer thereof and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect
to any Government Obligation where the relevant government is the United States of America or a specific payment of principal of or interest on any such Government Obligation held by such custodian for the account of the holder of such depositary
receipt,
provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the such
Government Obligation or the specific payment of principal of or interest on such Government Obligation evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm that, the Holders of the Outstanding Securities of such series will not recognize gain or loss for Federal income tax purposes as a result of such deposit, defeasance and discharge and
will be subject to Federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred.
(3) In the event of an election to have Section 1303 apply to any Securities or any series of Securities, as the case
may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such series will not recognize gain or loss for Federal income tax purposes as a result of such deposit and
covenant defeasance and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred.
(4) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to
the Securities of such series shall have occurred and be continuing on the date of such deposit or, insofar as subsections 501(5) and (6) are concerned, at any time during the period ending on the 90th day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the expiration of such period).
45
(5) Such defeasance or covenant defeasance shall not cause the Trustee to
have a conflicting interest as defined in Section 608 and for purposes of the Trust Indenture Act with respect to any securities of the Company.
(6) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is
bound.
(7) The Company shall have delivered to the Trustee and Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to either the defeasance under Section 1302 or the covenant defeasance under Section 1303 (as the case may be) have been complied with.
(8) Such defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment
company as defined in the Investment Company Act, or such trust shall be qualified under such act or exempt from regulation thereunder.
SECTION 1305.
Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred to collectively, for purposes of this Section 1305, as the “Trustee”) pursuant to Section 1304 in respect of the Securities of such series shall be held in
trust and applied by the Trustee, in accordance with the provisions of such Securities of such series 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 Holders of the Securities of such series, of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, but such money need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed
against the Government Obligations deposited pursuant to Section 1304 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding
Securities.
Anything in this Article XIII to the contrary notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon Company Request any money or Government Obligations held by it as provided in Section 1304 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance.
SECTION 1306.
Reinstatement.
If the Trustee or the Paying Agent is unable
to apply any money in accordance with Section 1302 or 1303 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under
this Indenture and the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to this Article XIII until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 1302 or 1303;
provided
,
however
, that if the Company makes any payment of principal of (and premium, if any) or interest on any Security following the reinstatement of its obligations, the Company shall be subrogated to
the rights of the Holders of the Securities of such series to receive such payment from the money held by the Trustee or the Paying Agent.
46
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, all as of the day and year
first above written.
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STRYKER CORPORATION
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By:
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Name:
Title:
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U.S. BANK NATIONAL ASSOCIATION
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By:
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Name:
Title:
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47
EXHIBIT A
Form of Face of Security
Stryker Corporation, a Michigan corporation (herein called the “Company”, which term
includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to
, or registered assigns, the
principal sum of Dollars on
[
if the Security is to bear interest prior to Maturity, insert
—, and to pay interest thereon from
or from the most
recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on
and
in each year,
commencing , at the
rate of % per annum, until the principal hereof is paid or made available for payment [
if applicable, insert
—, provided that any principal and premium, and any such installment
of interest, which is overdue shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are
due until they are paid or made available for payment, and such interest shall be payable on demand]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the
or
(whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said
Indenture].
[If the Security is not to bear interest prior to Maturity, insert
— The principal of this Security shall not bear
interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any overdue premium shall bear interest at the rate of
% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest
on any overdue principal or premium shall be payable on demand.
Payment of the principal of (and premium, if any) and any such interest on
this Security will be made at the office or agency of the Company maintained for that purpose in , in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of public and private debts;
provided
,
however
, that at the option of the Company payment of interest may be made by (i) check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or (ii) wire transfer in immediately available funds to the place and account designated in writing by the Person entitled to such payment as specified in the
Security Register.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which
further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of
authentication hereof has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.
Dated:
A-2
EXHIBIT A1
Form of Reverse of Security
This Security is one of
a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of
(herein called the “Indenture”, which term shall have the
meaning assigned to it in such instrument), between the Company and U.S. Bank National Association, a nationally chartered banking association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. [This Security is one of the series designated on the face hereof
,
limited in aggregate principal amount to
$ .]
[
If applicable, insert
— The Securities of this
series are subject to redemption upon not less than 30 days’ notice by mail,
[if applicable, insert
— (1) on
in any year commencing with the year
and ending with the year
through operation of the sinking fund for this series at a Redemption Price equal to 100% of
the principal amount, and (2)] at any time [
if applicable, insert
— (1) on or after
], as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount): If redeemed
[if applicable, insert —
on or before ,
%, and if redeemed] during the 12-month period beginning
of the years indicated,
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Year
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Redemption
Price
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Year
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Redemption
Price
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and thereafter at a Redemption Price equal to
% of the principal amount, together in the case of any such redemption
[if applicable, insert —
(whether through operation of the sinking
fund or otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of
record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert
— The Securities of this series are subject to redemption upon not less than 30 days’ notice by mail, (1) on
in any year commencing with the year
and ending with the year
through operation of the sinking fund for this series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time
[if applicable, insert —
on or
after ], as a whole or in part, at the election of the Company, at the Redemption
Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning
of the years indicated,
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Year
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Redemption Price for
Redemption Through Operation
of the Sinking Fund
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Redemption Price for
Redemption Otherwise Than
Through Operation of the
Sinking Fund
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and thereafter at a Redemption Price equal to
% of the principal amount, together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert
— Notwithstanding the foregoing, the Company may not, prior to
redeem any Securities of this
series as contemplated by [
if applicable, insert
— Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest
cost to the Company (calculated in accordance with generally accepted financial practice) of less than % per annum.]
[If applicable, insert —
The sinking fund for this series provides for the redemption on
in each year beginning with the
year and ending with the year of
[if applicable, insert
— not less than $ (“mandatory sinking fund”) and not more than]
$ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the
Company otherwise than through
[if applicable, insert —
mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert —
mandatory] sinking fund payments otherwise required to be made
[if
applicable, insert
— , in the inverse order in which they become due].]
[If the Security is subject to redemption
of any kind, insert —
In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
[If applicable, insert —
The Indenture contains provisions for defeasance at any time of
[the entire indebtedness of this Security] [or] [certain restrictive covenants and Events of Default with respect to this Security] [, in each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert —
If an Event of Default with respect to
Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the
Security
is an Original Issue Discount Security, insert
— If an Event of Default with respect to Securities of
this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to —
insert formula
for determining the amount.
Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall
be legally enforceable), all of the Company’s obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations
of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not
have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless
A1-2
such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal
amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after
receipt- of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this
series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of
$ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 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 this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security
which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
A1-3
Exhibit 4.7
Stryker Corporation
and
U.S. Bank National Association
Indenture
Dated as of
[ ]
Subordinated Debt Securities
CROSS-REFERENCE SHEET*
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Section of Trust
Indenture Act of
1939, as
amended
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Section of
Indenture
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310(a)(1)
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609
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310(a)(2)
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609
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310(a)(3)
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Not Applicable
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310(a)(4)
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Not Applicable
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310(b)
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608, 610
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311(a)
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613
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311(b)
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613
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312(a)
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701, 702
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312(b)
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702
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312(c)
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702
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313(a)
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703
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313(b)
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703
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313(c)
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703
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313(d)
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703
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314(a)
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704
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314(a)(4)
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101, 1004
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314(b)
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Not Applicable
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314(c)(1)
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102
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314(c)(2)
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102
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314(c)(3)
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Not Applicable
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314(d)
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Not Applicable
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314(e)
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102
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315(a)
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601
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315(b)
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602
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315(c)
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601
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315(d)
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601
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315(e)
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514
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316(a)
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101
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316(a)(1)(A)
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502, 512
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316(a)(1)(B)
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513
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316(a)(2)
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Not Applicable
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316(b)
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508
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316(c)
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104
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317(a)(1)
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503
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317(a)(2)
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504
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317(b)
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1003
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318(a)
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107
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*
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This cross-reference sheet does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
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TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS
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1
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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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6
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SECTION 103.
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Form of Documents Delivered to Trustee.
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7
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SECTION 104.
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Acts of Holders; Record Dates.
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7
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SECTION 105.
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Notices, Etc., to Trustee and Company.
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9
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SECTION 106.
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Notice to Holders; Waiver.
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9
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SECTION 107.
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Conflict with Trust Indenture Act.
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9
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SECTION 108.
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Effect of Headings and Table of Contents.
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10
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SECTION 109.
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Successors and Assigns.
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10
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SECTION 110.
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Separability Clause.
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10
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SECTION 111.
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Benefits of Indenture.
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10
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SECTION 112.
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Governing Law.
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10
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SECTION 113.
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Legal Holidays.
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10
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SECTION 114.
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Language of Notices, Etc.
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10
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SECTION 115.
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Submission to Jurisdiction.
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10
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ARTICLE II SECURITY FORMS
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11
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SECTION 201.
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Forms Generally.
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11
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SECTION 202.
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Form of Legend for Global Securities.
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11
|
|
SECTION 203.
|
|
Form of Trustee’s Certificate of Authentication.
|
|
11
|
|
SECTION 204.
|
|
Securities in Global Form.
|
|
12
|
|
|
|
|
ARTICLE III THE SECURITIES
|
|
12
|
|
SECTION 301.
|
|
Amount Unlimited; Issuable in Series.
|
|
12
|
|
SECTION 302.
|
|
Denominations.
|
|
15
|
|
SECTION 303.
|
|
Execution, Authentication, Delivery and Dating.
|
|
16
|
|
SECTION 304.
|
|
Temporary Securities.
|
|
17
|
|
SECTION 305.
|
|
Registration, Registration of Transfer and Exchange.
|
|
17
|
|
SECTION 306.
|
|
Mutilated, Destroyed, Lost and Stolen Securities.
|
|
18
|
|
SECTION 307.
|
|
Payment of Interest; Interest Rights Preserved.
|
|
18
|
|
SECTION 308.
|
|
Persons Deemed Owners.
|
|
19
|
|
SECTION 309.
|
|
Cancellation.
|
|
19
|
|
SECTION 310.
|
|
Computation of Interest.
|
|
20
|
|
SECTION 311.
|
|
CUSIP Numbers
|
|
20
|
|
|
|
|
ARTICLE IV SATISFACTION AND DISCHARGE
|
|
20
|
|
SECTION 401.
|
|
Satisfaction and Discharge of Indenture.
|
|
20
|
|
SECTION 402.
|
|
Application of Trust Money.
|
|
21
|
|
|
|
|
ARTICLE V REMEDIES
|
|
21
|
|
SECTION 501.
|
|
Events of Default.
|
|
21
|
|
SECTION 502.
|
|
Acceleration of Maturity; Rescission and Annulment.
|
|
22
|
|
SECTION 503.
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee.
|
|
23
|
|
SECTION 504.
|
|
Trustee May File Proofs of Claim.
|
|
24
|
|
SECTION 505.
|
|
Trustee May Enforce Claims Without Possession of Securities.
|
|
24
|
|
SECTION 506.
|
|
Application of Money Collected.
|
|
24
|
|
SECTION 507.
|
|
Limitation on Suits.
|
|
25
|
|
SECTION 508.
|
|
Unconditional Right of Holders to Receive Principal, Premium and Interest.
|
|
25
|
|
SECTION 509.
|
|
Restoration of Rights and Remedies.
|
|
25
|
|
SECTION 510.
|
|
Rights and Remedies Cumulative.
|
|
26
|
|
SECTION 511.
|
|
Delay or Omission Not Waiver.
|
|
26
|
|
|
|
|
|
|
|
SECTION 512.
|
|
Control by Holders.
|
|
26
|
|
SECTION 513.
|
|
Waiver of Past Defaults.
|
|
26
|
|
SECTION 514.
|
|
Undertaking for Costs.
|
|
26
|
|
SECTION 515.
|
|
Waiver of Usury, Stay or Extension Laws.
|
|
27
|
|
|
|
|
ARTICLE VI THE TRUSTEE
|
|
27
|
|
SECTION 601.
|
|
Certain Duties and Responsibilities.
|
|
27
|
|
SECTION 602.
|
|
Notice of Defaults.
|
|
27
|
|
SECTION 603.
|
|
Certain Rights of Trustee.
|
|
27
|
|
SECTION 604.
|
|
Not Responsible for Recitals or Issuance of Securities.
|
|
28
|
|
SECTION 605.
|
|
May Hold Securities.
|
|
29
|
|
SECTION 606.
|
|
Money Held in Trust.
|
|
29
|
|
SECTION 607.
|
|
Compensation and Reimbursement.
|
|
29
|
|
SECTION 608.
|
|
Conflicting Interests.
|
|
29
|
|
SECTION 609.
|
|
Corporate Trustee Required; Eligibility.
|
|
29
|
|
SECTION 610.
|
|
Resignation and Removal; Appointment of Successor.
|
|
30
|
|
SECTION 611.
|
|
Acceptance of Appointment by Successor.
|
|
31
|
|
SECTION 612.
|
|
Merger, Conversion, Consolidation or Succession to Business.
|
|
31
|
|
SECTION 613.
|
|
Preferential Collection of Claims Against Company.
|
|
32
|
|
SECTION 614.
|
|
Appointment of Authenticating Agent.
|
|
32
|
|
|
|
|
ARTICLE VII HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
33
|
|
SECTION 701.
|
|
Company to Furnish Trustee Names and Addresses of Holders.
|
|
33
|
|
SECTION 702.
|
|
Preservation of Information; Communications to Holders.
|
|
34
|
|
SECTION 703.
|
|
Reports by Trustee.
|
|
34
|
|
SECTION 704.
|
|
Reports by Company.
|
|
34
|
|
|
|
|
ARTICLE VIII MERGER, CONSOLIDATION, SALE, ASSIGNMENT, TRANSFER, LEASE OR CONVEYANCE
|
|
35
|
|
SECTION 801.
|
|
Company May Merge, Etc., Only on Certain Terms.
|
|
35
|
|
SECTION 802.
|
|
Successor Substituted.
|
|
35
|
|
|
|
|
ARTICLE IX SUPPLEMENTAL INDENTURES
|
|
36
|
|
SECTION 901.
|
|
Supplemental Indentures Without Consent of Holders.
|
|
36
|
|
SECTION 902.
|
|
Supplemental Indentures With Consent of Holders.
|
|
37
|
|
SECTION 903.
|
|
Execution of Supplemental Indentures.
|
|
38
|
|
SECTION 904.
|
|
Effect of Supplemental Indentures.
|
|
38
|
|
SECTION 905.
|
|
Conformity with Trust Indenture Act.
|
|
38
|
|
SECTION 906.
|
|
Reference in Securities to Supplemental Indentures.
|
|
38
|
|
|
|
|
ARTICLE X COVENANTS
|
|
38
|
|
SECTION 1001.
|
|
Payment of Principal, Premium and Interest.
|
|
38
|
|
SECTION 1002.
|
|
Maintenance of Office or Agency.
|
|
38
|
|
SECTION 1003.
|
|
Money for Securities Payments to Be Held in Trust.
|
|
39
|
|
SECTION 1004.
|
|
Statement by Officers as to Default.
|
|
39
|
|
SECTION 1005.
|
|
Existence.
|
|
40
|
|
SECTION 1006.
|
|
Maintenance of Properties.
|
|
40
|
|
SECTION 1007.
|
|
Payment of Taxes and Other Claims.
|
|
40
|
|
SECTION 1008.
|
|
Waiver of Certain Covenants.
|
|
40
|
|
SECTION 1009.
|
|
Additional Amounts
|
|
40
|
|
|
|
|
ARTICLE XI REDEMPTION OF SECURITIES
|
|
41
|
|
SECTION 1101.
|
|
Applicability of Article.
|
|
41
|
|
SECTION 1102.
|
|
Election to Redeem; Notice to Trustee.
|
|
41
|
|
SECTION 1103.
|
|
Selection by Trustee of Securities to Be Redeemed.
|
|
41
|
|
SECTION 1104.
|
|
Notice of Redemption.
|
|
42
|
|
|
|
|
|
|
|
SECTION 1105.
|
|
Deposit of Redemption Price.
|
|
42
|
|
SECTION 1106.
|
|
Securities Payable on Redemption Date.
|
|
43
|
|
SECTION 1107.
|
|
Securities Redeemed in Part.
|
|
43
|
|
|
|
|
ARTICLE XII SINKING FUNDS
|
|
43
|
|
SECTION 1201.
|
|
Applicability of Article.
|
|
43
|
|
SECTION 1202.
|
|
Satisfaction of Sinking Fund Payments with Securities.
|
|
43
|
|
SECTION 1203.
|
|
Redemption of Securities for Sinking Fund.
|
|
44
|
|
|
|
|
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE
|
|
44
|
|
SECTION 1301.
|
|
Company’s Option to Effect Defeasance or Covenant Defeasance.
|
|
44
|
|
SECTION 1302.
|
|
Defeasance and Discharge.
|
|
44
|
|
SECTION 1303.
|
|
Covenant Defeasance.
|
|
44
|
|
SECTION 1304.
|
|
Conditions to Defeasance or Covenant Defeasance.
|
|
45
|
|
SECTION 1305.
|
|
Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions.
|
|
46
|
|
SECTION 1306.
|
|
Reinstatement.
|
|
47
|
|
|
|
|
ARTICLE XIV SUBORDINATION OF SECURITIES
|
|
47
|
|
SECTION 1401.
|
|
Securities Subordinate to Senior Debt.
|
|
47
|
|
SECTION 1402.
|
|
Payment Over of Proceeds upon Dissolution, Etc.
|
|
47
|
|
SECTION 1403.
|
|
Subrogation to Rights of Holders of Senior Debt.
|
|
48
|
|
SECTION 1404.
|
|
Provisions Solely to Define Relative Rights.
|
|
48
|
|
SECTION 1405.
|
|
Trustee to Effectuate Subordination.
|
|
49
|
|
SECTION 1406.
|
|
No Waiver of Subordination Provisions.
|
|
49
|
|
SECTION 1407.
|
|
Notice to Trustee.
|
|
49
|
|
SECTION 1408.
|
|
Reliance on Judicial Order or Certificate of Liquidating Agent.
|
|
50
|
|
SECTION 1409.
|
|
Trustee Not Fiduciary for Holders of Senior Debt.
|
|
50
|
|
SECTION 1410.
|
|
Rights of Trustee as Holder of Senior Debt; Preservation of Trustee’s Rights.
|
|
50
|
|
SECTION 1411.
|
|
Article Applicable to Paying Agents.
|
|
50
|
|
SECTION 1412.
|
|
Certain Conversions or Exchanges Deemed Payment.
|
|
51
|
|
SECTION 1413.
|
|
Defeasance of this Article Fourteen.
|
|
51
|
|
|
|
|
|
EXHIBIT A
|
|
Form of Face of Security
|
|
|
|
EXHIBIT A1
|
|
Form of Reverse of Security
|
|
|
INDENTURE, dated as of
, between Stryker Corporation, a corporation duly organized and existing under the laws of the State of Michigan (herein called
the “Company”), having its principal office at 2825 Airview Boulevard, Kalamazoo, Michigan and U.S. Bank National Association, a nationally chartered banking association, as Trustee (herein called the “Trustee”).
R
ECITALS
OF
T
HE
C
OMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured,
subordinated debentures, notes or other evidences of indebtedness (herein called the “Securities”), which may be convertible into or exchangeable for any securities of any persons (including the Company), to be issued in one or more series
as in this Indenture provided.
All things necessary to make this Indenture a valid and legally binding agreement of the
Company, in accordance with its terms, have been done.
NOW
,
THEREFORE
,
THIS
INDENTURE
WITNESSETH
:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE I
DEFINITIONS
SECTION 101.
Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting principles, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting
principles as are generally accepted as consistently applied by the Company at the date of such computation;
(4) unless the context otherwise requires, any reference to an “Article”, a “Section” or an “Exhibit” refers to an Article, a Section or an Exhibit, as the case may be, of or to this Indenture; and
(5) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used
principally in Article VI and Article XIII, are defined in those Articles.
“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.
“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.
“Authorized Newspaper” means a newspaper, in the English language or
in an official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in each place in connection with which the term is used or in
the financial community of each such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
“Board of Directors” means either the board of directors of the
Company or any duly authorized committee of that board of directors.
“Board Resolution” means a copy of a
resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day”, when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday that is
not a day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close.
“Commission” means the United States Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument the United States Securities and
Exchange 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 Person shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request” or
“Company Order” means a written request or order signed in the name of the Company by its Chief Executive Officer, its President or a Vice President, and by its Chief Financial Officer, Treasurer, an Assistant Treasurer, its Controller or
an Assistant Controller, its Secretary or an Assistant Secretary, and delivered to the Trustee.
“Corporate Trust
Office” means the office of the Trustee at which at any particular time its corporate trust business shall be administered, which as of the date hereof is located at 40 Pearl Street NW, Suite 838, Grand Rapids, MI 49503, Attn: Corporate Trust
Services.
“corporation” means a corporation, association, company, limited liability company, joint-stock company
or business trust.
“covenant defeasance” has the meaning specified in Section 1303.
“Defaulted Interest” has the meaning specified in Section 307.
2
“defeasance” has the meaning specified in Section 1302.
“Depositary” means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 301, which shall initially be the Depositary Trust Company.
“Event of Default” has the meaning specified in Section 501.
“Exchange Act” means the United States Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended
from time to time.
“Expiration Date” has the meaning specified in Section 104.
“Global Security” means a Security that evidences all or part of the Securities of any series and bears the legend set forth in
Section 202 (or such legend as may be specified as contemplated by Section 301 for such Securities).
“Government Obligation” has the meaning specified in Section 1304.
“Holder” means the
Person in whose name the Security is registered in the Security Register.
“Indenture” means this instrument as
originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular
series of Securities established as contemplated by Section 301.
“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.
“Investment Company Act” means the United States Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.
“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.
“Notice of Default” means a written notice of the kind specified in Section 501(4).
“Officers’ Certificate” means a certificate signed by the Chief Executive Officer, the President or a Vice President, and by the Chief Financial Officer, Treasurer, an Assistant Treasurer,
the Controller or an Assistant Controller, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee. One of the officers signing an Officers’ Certificate given pursuant to Section 1004 shall be the principal
executive, financial or accounting officer of the Company.
“Opinion of Counsel” means a written opinion of counsel,
which may be an employee of or counsel for the Company.
3
“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.
“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture (including Securities
held by the Company or an Affiliate), except:
(1) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(2) 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;
(3) Securities, except to the extent provided in Sections 1302 and 1303, with respect to which the Company has effected
defeasance or covenant defeasance as provided in Article XIII; and
(4) Securities that 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, made or taken any request, demand, authorization, direction, notice, consent, waiver or
other action hereunder as of any date or whether a quorum is present at a meeting of Holders of Securities, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the
principal thereof that would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is
not determinable, the principal amount of such Security that shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (C) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 301, of the principal amount of such Security (or, in
the case of a Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver, or other
action, or upon any such determination as to the presence of a quorum, only Securities that a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
“Paying Agent” means any Person authorized by the Company to pay
the principal of or any premium or interest on any Securities on behalf of the Company, which shall initially be the Trustee.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.
4
“Place of Payment”, when used with respect to the Securities of any series, means
the place or places specified in accordance with Section 301 where the principal of and any premium and interest on the Securities of that series are payable.
“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.
“Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
“Redemption Price”, when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“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.
“Responsible Officer”, when used with respect to the Trustee, means any vice president, the treasurer, any assistant treasurer, any trust officer or assistant trust officer, the controller or
any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his knowledge of and familiarity with the particular subject and who shall have responsibility for the administration of this Indenture.
“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.
“Securities Act” means the United States Securities Act of 1933 and any statute successor thereto, in each
case as amended from time to time.
“Security Register” and “Security Registrar” have the respective
meanings specified in Section 305.
“Senior Debt” means all amounts due on obligations in connection with any
of the following, whether outstanding at the date of execution of this Indenture or thereafter incurred or created: (i) the principal of (and premium, if any) and interest due on the Company’s indebtedness for borrowed money and
indebtedness evidenced by securities, debentures, bonds or other similar instruments issued by the Company; (ii) any of the Company’s obligations as lessee under leases required to be capitalized on the balance sheet of the lessee under
generally accepted accounting principles; (iii) all of the Company’s obligations for the reimbursement on any letter of credit, banker’s acceptance, security purchase facility or similar credit transaction; (iv) all of the
Company’s obligations in respect of interest rate swap, cap or other agreements, interest rate future or options contracts, currency swap agreements, currency future or option contracts and other similar agreements; (v) all obligations of
the types referred to above of other persons for the payment of which the Company is responsible or liable as obligor, guarantor or otherwise; and (vi) all obligations of the types referred to above of other persons secured by any lien on any
property or asset of the Company (whether or not such obligation is assumed by the Company);
provided however
, that the following will not constitute Senior Debt: (a) any indebtedness which, by its terms or the terms of the instrument
creating or evidencing it, expressly provides that such indebtedness shall have a subordinate or equal right of payment with the Securities; (b) any indebtedness incurred in the form of trade accounts payable or accrued liabilities arising in
the ordinary course of business; (c) any indebtedness of the Company to any Subsidiary;
5
(d) any liability for federal, state, local or other taxes owed or owing by the Company; and (e) the portion of any indebtedness incurred by the Company in violation of the provisions
of this Indenture.
“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 a corporation, partnership or other legal entity of which, in the case of a corporation, more than 50% of the
outstanding voting stock is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries or, in the case of any partnership or other legal entity, more than 50% of the
ordinary capital interests is, at the time, directly or indirectly owned or controlled by the Company or by one or more other Subsidiaries. For the purposes of this definition, “voting stock” means the equity interest that ordinarily has
voting power for the election of directors, managers or trustees of an entity, or persons performing similar functions, whether at all times or only so long as no senior class of equity interest has such voting power by reason of any contingency.
“Trust Indenture Act” means the United States Trust Indenture Act of 1939 as in force at the date as of which this
instrument was executed;
provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as
so amended.
“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.
“United States Alien” means any Person who, for United States Federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership one or more of the members of which is, for United States Federal income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust.
“Vice President”, when used with respect to the Company or the Trustee, means any vice president, whether or not
designated by a number or a word or words added before or after the title “vice president”.
SECTION 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 such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by an
officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates
provided for in Section 1004) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
6
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a
statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been
complied with.
SECTION 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 an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless
such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104.
Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given,
made 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 agent duly appointed in writing. 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.
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 his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
7
The principal amount and serial numbers of Securities held by any Person, and the date of
holding the same, shall be proved by the Security Register.
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.
The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any
series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series,
provided,
that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph.
If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date;
provided,
that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no
effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date
for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any
request to institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section 512, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date;
provided,
that
no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be
construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in
writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party hereto that sets such record date may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later
day;
provided
that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto that set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph.
8
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder
with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of
such principal amount.
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,
(1) the Trustee by any Holder or by the
Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (which may be via facsimile) to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Services
,
or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument, Attention: General Counsel, or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106.
Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this Indenture provides for notice of any event to Holders of Securities, such notice
shall be sufficiently given to Holders of Securities if in writing and mailed, first-class postage prepaid, to each Holder of a Security affected by such event, at the address of such Holder as it appears in the Security Register, not later than the
latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice.
In case by
reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders of Securities by mail, then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. In any case where notice to Holders of Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a
Security 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 of Securities shall be filed
with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
SECTION 107.
Conflict with Trust Indenture Act.
This Indenture shall incorporate and be governed by the
provisions of the Trust Indenture Act that are required to be part of and to govern indentures qualified under the Trust Indenture Act. 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 latter provision 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.
9
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 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 and their successors hereunder, the holders of Senior Debt and the Holders of Securities, 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 law of the State of New York.
SECTION 113.
Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date, Redemption Date or sinking fund payment date or at the Stated Maturity or
Maturity, as the case may be.
SECTION 114.
Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the country of publication.
SECTION 115.
Submission to
Jurisdiction.
The Company irrevocably submits to the non-exclusive jurisdiction of any federal or state court in the City,
County and State of New York and any appellate court from any thereof, in any legal suit, action or proceeding based on or arising under the Securities or this Indenture and agrees that all claims in respect of such suit or proceeding may be
determined in any such court. The Company irrevocably waives, to the fullest extent permitted by law, any objection to any such suit, action or proceeding in such courts, whether on the grounds of venue, residence or domicile or the defense of an
inconvenient forum or objections to personal jurisdiction with respect to the maintenance of such legal suit, action or proceeding. The Company agrees that the final judgment in any such suit, action or proceeding brought in such court shall be
conclusive and binding upon the Company and may be enforced in any court to
10
the jurisdiction of which the Company is subject by a suit upon such judgment.
ARTICLE II
SECURITY FORMS
SECTION 201.
Forms Generally.
The Securities of each series shall be in
substantially the forms set forth in Exhibits A and A1 or in such other form (including temporary or permanent global form) as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities as evidenced by their execution thereof. 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 (or any such temporary global Security).
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
SECTION 202.
Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the Securities evidenced thereby, every Global Security authenticated and
delivered hereunder shall bear a legend in substantially the following form:
THIS
S
ECURITY
IS
A
G
LOBAL
S
ECURITY
WITHIN
THE
MEANING
OF
THE
I
NDENTURE
HEREINAFTER
REFERRED
TO
AND
IS
REGISTERED
IN
THE
NAME
OF
A
D
EPOSITARY
OR
A
NOMINEE
THEREOF
. T
HIS
S
ECURITY
MAY
NOT
BE
EXCHANGED
IN
WHOLE
OR
IN
PART
FOR
A
S
ECURITY
REGISTERED
,
AND
NO
TRANSFER
OF
THIS
S
ECURITY
IN
WHOLE
OR
IN
PART
MAY
BE
REGISTERED
,
IN
THE
NAME
OF
ANY
P
ERSON
OTHER
THAN
SUCH
D
EPOSITARY
OR
A
NOMINEE
THEREOF
,
EXCEPT
IN
THE
LIMITED
CIRCUMSTANCES
DESCRIBED
IN
THE
I
NDENTURE
.
SECTION 203.
Form of Trustee’s Certificate of Authentication.
The Trustee’s certificates of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
|
|
|
U.S. Bank National Association
|
|
As Trustee
|
|
|
|
By:
|
|
Authorized Signatory
|
|
|
|
Dated:
|
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SECTION 204.
Securities in Global Form.
If Securities of or within a series are issuable in global form, as specified as contemplated by Section 301, then, notwithstanding
Clause (3) of Section 301 and the provisions of Section 302, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate
amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon instructions given by such Person or Persons as shall be specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section 303 or Section 304. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order. If a Company Order pursuant to Section 303 or Section 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any Security represented by a Security in global form if such
Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global from together with written instructions (which need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 201 and 307, unless otherwise specified as contemplated by Section 301, payment of
principal of and any premium and interest on any Security in permanent global form shall be made to the Person or Persons specified therein.
ARTICLE III
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 in 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 issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
(3) if other than denominations of $2,000 or any integral multiple of $1,000
,
the denominations in which any Securities of the series shall be issuable;
12
(4) the date or dates upon which the principal of the Securities of the
series is payable and whether the Stated Maturity may be extended or the method used to determine or extend those dates;
(5) the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates shall be determined, whether such rate or rates may be reset, the date or
dates from which any such interest shall accrue or the method used for determining those dates, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for the interest payable on any Securities on any
Interest Payment Date or method by which such date or dates shall be determined;
(6) the basis for calculating
interest if other than a 360-day year of twelve 30-day months;
(7) the right, if any, to extend the interest
payment periods and the duration of any such deferral period;
(8) whether the amount of payments of principal
(or premium, if any) or interest, if any, on the Securities of the series may be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or more currencies, commodities,
equity indices or other indices), and the manner in which such amounts shall be determined;
(9) the place or
places where, subject to the provisions of Section 1002, the principal of and any premium, if any, and interest, if any, on Securities of the series shall be payable, where any Securities of the series may be surrendered for registration of
transfer, where Securities of the series may be surrendered for exchange, where Securities of the series that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable, and notices and demands to or upon the
Company in respect of the Securities of the series and this Indenture may be served;
(10) the rate or rates of
amortization of Securities of the series, if any;
(11) the obligation or discretion, if any, of the Company to
redeem, repay or purchase any Securities of the series pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions
upon which, any Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(12) the terms and conditions, if any, regarding the mandatory conversion or exchange of Securities;
(13) the period or periods within which, the price or prices at which, and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the
Company and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Securities shall be evidenced;
(14) any restriction or condition on the transferability of Securities of a particular series;
13
(15) if other than the entire principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502;
(16) the currency or currencies, including composite 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 and the manner of determining the equivalent thereof in the currency of the United States of America for purposes of
the definition of “Outstanding” in Section 101;
(17) 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 the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and
the amount so payable (or the manner in which such amount shall be determined);
(18) provisions, if any,
granting special rights to Holders of the Securities upon the occurrence of specified events;
(19) any
addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to
Section 502;
(20) any addition to or change in the definitions set forth in Article I that apply to the
Securities of the series, and any addition to or change in the covenants set forth in Article X which applies to Securities of the series;
(21) if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 1302 or Section 1303 or both such Sections, any variations of such
Sections and, if other than by a Board Resolution, the manner in which any election by the Company to defease such Securities shall be evidenced;
(22) the terms, if any, upon which Holders may convert or exchange the Securities into or for the Company’s common stock, preferred stock or other securities or property;
(23) whether any Securities of the series are to be issuable initially in temporary global form and whether any Securities of
the series are to be issuable in permanent global form and, if so, whether beneficial owners of interests in any such permanent global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 305;
(24) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global
Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 202 and any circumstances in addition to or in lieu of those set forth in the fourth paragraph
of Section 305 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be
14
registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;
(25) the appointment of any paying agents, authenticating agents, transfer agents, registrars or other agents, if other than
the Trustee;
(26) the Person to whom any interest on any 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, and the extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid, if other than in the manner provided in Section 304;
(27) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall
be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(28) whether, under what circumstances and the Currency in which the Company will pay additional amounts as contemplated by
Section 1009 on the Securities of the series to any Holder who is not a United States Person(s) (including any modification to the definition of such term) in respect of any tax, assessment or governmental charge and, if so, whether the Company
will have the option to redeem such Securities rather than pay such additional amounts (and the terms of any such option);
(29) the specific subordination provisions applicable to the Securities, if other than as set forth in Article XIV; and
(30) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as
permitted by Section 901(5)).
All Securities of such series shall be substantially identical except as to denomination
and except as may otherwise be provided in 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.
The Securities shall be subordinated in right of payment to Senior Debt as provided in Article XIV.
SECTION 302.
Denominations.
Unless otherwise provided as contemplated by Section 301 with respect to the Securities of any series, any Securities of such series, other than Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $2,000 or any integral multiple of $1,000.
15
SECTION 303.
Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chief Executive Officer, its President, its Chief Financial Officer, its
Treasurer or one of its Vice Presidents, under its corporate seal reproduced thereon 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, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If
the forms or terms of the Securities of the series have been established by 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:
(1) if the forms of such Securities have been established by or pursuant to Board Resolution as permitted by
Section 201, that such form have been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture; and
(3) 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, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the two preceding paragraphs, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraphs at or prior to the authentication of each Security of such series if such documents are delivered at or prior
to the authentication upon original issuance of the first Security of such series to be issued.
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. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered
16
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, 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, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as 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 that series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and like aggregate principal amount and tenor.
Until exchanged in full as hereinafter provided, the temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder.
SECTION
305.
Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency to
be maintained by the Company in accordance with Section 1002 a register (being the combined register of the Security Registrar and all transfer agents designated pursuant to Section 1002 for the purpose of registration of transfer of
Securities and sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and the registration 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 a series at the office or agency of the Company maintained pursuant to
Section 1002 for such purpose in a Place of Payment for that 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 like tenor and aggregate principal amount.
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 like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities that 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 or any transfer agent) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the
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Company and the Security Registrar or any transfer agent duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, the Company shall not be
required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before any selection of
Securities of that series to be redeemed and ending at the close of business on the day of the mailing of the relevant notice of redemption or (B) 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.
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 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.
Notwithstanding the provisions of the previous two paragraphs, 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.
SECTION 307.
Payment of Interest; Interest
Rights Preserved.
Except as 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 at the
close of business on the Regular Record Date for such interest.
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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 (1) or (2) below:
(1) 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
given to each Holder of Securities of such series in the manner set forth in Section 106, 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 (2).
(2) 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.
Subject to the foregoing provisions of this Section and Section 305, 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 as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 305 and Section 307)
any 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.
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 cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder
19
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 cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in
this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as 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.
SECTION 311.
CUSIP Numbers
The Company in issuing the Securities may use
“CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use such “CUSIP” numbers in notices of redemption as a convenience to Holders;
provided
that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company will notify the Trustee of any change “CUSIP” numbers.
ARTICLE IV
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 any
right to receive additional amounts, as provided in Section 1009), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) 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 the payment of which 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
(B) 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
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(iii) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of Section 401(1)(B)(i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture 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 (B) of Clause (1) of this Section, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive such satisfaction and discharge.
SECTION 402.
Application of
Trust Money.
Subject to the 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 any premium and interest for the payment of which such money has been deposited with the Trustee.
ARTICLE V
REMEDIES
SECTION 501.
Events of Default.
“Event of Default”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article XIV or 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):
(1) 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
(2) default in the payment of the principal of or
any premium on any Security of that series at its Maturity and (if so established as contemplated by Section 301 in respect of that series), in the case of technical or administrative difficulties only if such default persists for a period of
five days; or
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(3) default in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series, in the case of technical or administrative difficulties only if such a default persists for a period of five days; or
(4) 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 series of Securities other than that series),
and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in 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
(5) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the
Company 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 as 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 of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect
for a period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case 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, of the consent by it to the entry of a decree or order for relief in
respect of the Company 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 of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of that series.
SECTION 502.
Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(5) or 501(6)) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of
that series may declare the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms
thereof) to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an
Event of Default specified in Section 501(5) or 501(6) with respect to Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue
Discount Securities, such
22
portion of the principal amount of such Securities as may be specified by the terms thereof) shall automatically, and without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities
of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that
series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B)
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 any interest thereon at the rate or rates prescribed therefor in such Securities,
(C) 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
(D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;
and
(2) 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.
SECTION 503.
Collection of
Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) 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
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof, in the case of technical or administrative difficulties only if such a default persists for a period of five days,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and
interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of collection,
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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 Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law
out of the property of the Company or any other obligor upon such Securities, wherever situated.
If 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 reasonably necessary 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 any judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized 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.
No provision of this Indenture 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;
provided
,
however
, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
SECTION 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, 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 any premium 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:
FIRST: To the payment of all amounts due the Trustee under Section 607;
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SECOND: To the payment of the amounts then due and unpaid for principal of and any premium
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 any
premium and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company or any other Person or
Persons entitled thereto.
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
(1) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60–day period by the Holders of a majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
SECTION 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 any premium and (subject to Sections 305 and 307) interest on such Security on the respective Stated 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
25
restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 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 principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series,
provided
that:
(1) such direction shall not be in conflict with any rule of law or with this Indenture, and
(2) 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 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:
(1) in the payment of the principal of or
any premium or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof
which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any 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.
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, a court may require any party litigant in such suit to file an undertaking to pay the costs
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of such suit, and may assess costs including reasonable attorneys’ fees and expenses against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act;
provided
that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company.
SECTION 515.
Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay
or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 601.
Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602.
Notice
of Defaults.
If a default occurs hereunder with respect to Securities of any series, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the extent provided by the Trust Indenture Act;
provided
,
however
, that in the case of any default of the character specified in Section 501(4) 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, the term “default” means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
SECTION 603.
Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may conclusively rely and shall be fully 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 (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company
Request or Company Order, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
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(3) 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;
(4) the Trustee may consult with counsel of its own selection and the written
advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) 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;
(6) the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(7) 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;
(8) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(9) the Trustee shall not be deemed to have notice of any Event of Default or any event which, after notice or lapse of time or both, would become an Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture; and
(10) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without
limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and the Person employed to act hereunder.
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. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the proceeds thereof.
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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 Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
SECTION 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:
(1) 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);
(2) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as shall be determined to have been caused by its own negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability, claim, damage 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.
SECTION 608.
Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series.
SECTION 609.
Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee
hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000 and, is subject to supervision or
examination by federal, state or District of Columbia authority and is not otherwise ineligible under Section 310(a)(5) of the Trust Indenture Act. If any such Person publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person 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 the Trustee with respect to the Securities of any series shall cease to be eligible in
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accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
SECTION 610.
Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
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.
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 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,
(A) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (B) 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.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable
requirements of Section 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 of Securities of such series 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
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for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Company shall give notice of each resignation and each removal of the Trustee with respect to
the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 106. 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.
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. The successor Trustee shall mail notice of its succession to the Holders
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 necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may be.
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
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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.
SECTION 613.
Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of Section 311 of the Trust Indenture
Act, but only to the extent therein specified, regarding the collection of claims against the Company (or any such other obligor). For purposes of Section 311(b)(4) and (6) of such Act, the following terms shall mean:
(a) “cash transaction” means any transaction in which full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand; and
(b) “self-liquidating paper” means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company for the purpose of financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company arising from the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation.
SECTION 614.
Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act
on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 306, 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. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, and a copy of such evidence shall be promptly furnished to the Company. 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 or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for 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
32
Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to
the Company. The Trustee may at any time 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 give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall
become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this
Section.
The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services
under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 607.
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 alternative certificate of authentication in the following form:
This is one of the Securities of the
series designated therein referred to in the within-mentioned Indenture.
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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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If all of the Securities of a series may not be originally issued at one time,
and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so
requested by the Company in writing (which writing need not comply with Section 102 and need not be accompanied by an Opinion of Counsel), shall appoint in accordance with this Section an Authenticating Agent having an office in a Place of
Payment designated by the Company with respect to such series of Securities.
ARTICLE VII
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701.
Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
33
(1) semi-annually, not later than 15 days after each Regular Record Date or,
in the case of any series of Securities on which semi-annual interest is not payable, not more than 15 days after such semi-annual dates specified by the Trustee, a list, in such form as the Trustee may reasonably require, of the names and addresses
of the Holders of Securities of each series as of the Regular Record Date or such semi-annual date, as the case may be, and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding
from any such list names and addresses received by the Trustee in its capacity as
Security Registrar.
SECTION 702.
Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as 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.
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 the Trust Indenture Act.
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 any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703.
Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.
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 or delisted therefrom.
SECTION 704.
Reports by Company.
The Company shall file with the Trustee
and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to the Trust Indenture
Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
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ARTICLE VIII
MERGER, CONSOLIDATION, SALE, ASSIGNMENT, TRANSFER, LEASE OR CONVEYANCE
SECTION 801.
Company
May Merge, Etc., Only on Certain Terms.
The Company shall not merge with or into or consolidate with any other Person or
sell, assign, transfer, lease or convey all or substantially all of its properties and assets to any Person (other than a direct or indirect wholly-owned subsidiary of the Company), and the Company shall not permit any Person (other than a direct or
indirect wholly-owned subsidiary of the Company) to merge with or into or consolidate with the Company or sell, assign, transfer, lease or convey all or substantially all of its properties and assets to the Company, unless:
(1) the Company is the surviving corporation or, in case the Company shall merge into or consolidate with another Person or
sell, assign, transfer, lease or convey all or substantially all of its properties and assets to any Person, the Person into which the Company is merged or formed by such consolidation or the Person which acquires by sale, assignment, transfer or
conveyance, or which leases, all or substantially all of its properties and assets of the Company shall be a corporation, partnership or trust, 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 any premium and interest
(including all additional amounts, if any payable pursuant to Section 1009) 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;
(2) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the
Company or any Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of 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
(3) 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 merger of the Company into, or consolidation of the Company with, any other Person or
any sale, assignment, transfer, lease or conveyance of all or substantially all of the properties and assets of the Company in accordance with Section 801, the successor Person into which the Company is merged or formed by such consolidation or
to which such sale, assignment, transfer, lease or conveyance is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor 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.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901.
Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants, agreements and obligations of the Company herein and in the Securities; or
(2) 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 such series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the Holders of all or any series of
Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or
(4) 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 (A) shall neither (i) 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
(ii) modify the rights of the Holder of any such Security with respect to such provision or (B) shall become effective only when there is no such Security Outstanding; or
(5) to secure the Securities; or
(6) to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or
(7) 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; or
(8) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided that such action pursuant to this Clause (8) shall not adversely affect the
interests of the Holders of Securities of any series in any material respect; or
(9) to supplement any
provisions of this Indenture necessary to defease and discharge the Securities of any series,
provided
that such action does not adversely affect the interests of the Holders of the Securities in any material respect; or
(10) to comply with the rules or regulations of any securities exchange or automated quotation system on which any Securities
are listed or traded; or
36
(11) to add, change or eliminate any provisions of this Indenture in
accordance with any amendments to the Trust Indenture Act,
provided
that such action does not adversely affect the interests of the Holders of the Securities in any material respect.
SECTION 902.
Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than 50% 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:
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or change any obligation of the Company to pay additional
amounts pursuant to Section 1009 (except as contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the amount of the principal of an Original Issue Discount Security or any other Security which 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 Security or any premium or 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, on or after the Redemption Date), or modify the provisions of this Indenture with respect to the subordination of the
Securities in a manner adverse to the Holders, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) make any change that
adversely affects the right to convert or exchange any Security or decreases the conversion or exchange rate or increases the conversion price of any convertible or exchangeable Security, or
(4) modify any of the provisions of this Section, Section 513 or Section 1008, 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 and Section 1008, or the deletion of this proviso, in accordance with the requirements of
Sections 611 and 901(7).
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.
37
It shall not be necessary for any Act of Holders of Securities 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.
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.
SECTION 906.
Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company 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.
ARTICLE X
COVENANTS
SECTION
1001.
Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of Holders of each
series of Securities that it will duly and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture.
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 any such office or agency. If at any time the Company shall fail to maintain any such required office or agency in respect of any series of Securities or shall fail to furnish the Trustee
with the address thereof, such presentations and surrenders of Securities of that series may be made and notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands. The Company may also from time to time
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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 or any premium 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 sufficient to pay the principal and any premium or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, on or prior to each due date of the principal of or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal and any premium or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent 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 (1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(2) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay
to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.
The
Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from
all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal and any premium or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease;
provided
,
however
, that the Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper in each Place of Payment, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30
days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004.
Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company ending after the date hereof, an Officers’ Certificate, stating whether or not to the best knowledge of the signers thereof the Company is in default in the
39
performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company
shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
SECTION 1005.
Existence.
Subject to Article VIII, 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 ability of the Company to make payments hereunder.
SECTION 1006.
Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its business or the business of any Subsidiary 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 or the business of any Subsidiary and not disadvantageous in any material respect to the ability of the Company to make payments hereunder.
SECTION 1007.
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 the Company or
any Subsidiary or upon the income, profits or property of the Company or any Subsidiary, and (2) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Company or any
Subsidiary;
provided
,
however
, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good
faith.
SECTION 1008.
Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities of such series, the Company may, with respect to the Securities of any series, omit in any particular instance to comply
with any term, provision or condition set forth in any covenant provided pursuant to Section 301(12), 901(2) or 901(7) for the benefit of the Holders of such series if before the time for such compliance the Holders of at least 50% in 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, 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.
SECTION 1009.
Additional Amounts
.
If the Securities of a series provide for the payment of additional amounts, the Company will pay to the Holder of any Security of such series additional amounts as provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of
40
the principal of or any premium or interest on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall
be deemed to include mention of the payment of additional amounts provided for in this Section to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section and
express mention of the payment of additional amounts (if applicable) in any provisions hereof shall not be construed as excluding additional amounts in those provisions hereof where such express mention is not made.
ARTICLE XI
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 such Securities) 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 a Board Resolution
or in another manner specified as contemplated by Section 301 for such Securities. In case of any redemption at the election of the Company of less than all the Securities of any series (including any such redemption affecting only a single
Security), the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed (unless all of the Securities of a specified tenor are to be redeemed). In the case of any redemption of Securities (i) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, or (ii) pursuant to an election of the Company which is subject to a condition specified in the terms of such Securities, the Company shall
furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction or condition.
SECTION 1103.
Selection
by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all the
Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities 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 or of the
principal amount of global securities of such series. If less than all of the Securities of such series and of a specified tenor are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence. If so specified in the Securities of a series, partial redemptions
must be in an amount not less than $1,000,000 principal amount of Securities.
The Trustee shall promptly notify the Company
in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
41
The provisions of the two preceding paragraphs shall not apply with respect to any
redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized
denomination (which shall not be less than the minimum authorized denomination) for such Security.
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 in the manner provided in Section 106 to the Holders of Securities to be redeemed not less than 30
nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding
Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less
than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and,
if applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places
where such Securities are to be surrendered for payment of the Redemption Price,
(6) that the redemption is
for a sinking fund, if such is the case, and
(7) applicable CUSIP numbers, if any.
A notice of redemption published as contemplated by Section 106 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the
Company’s request, by the Trustee in the name and at the expense of the Company.
SECTION 1105.
Deposit of Redemption Price.
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 sufficient to 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.
42
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 on Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant 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 any premium 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 only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and 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.
ARTICLE XII
SINKING FUNDS
SECTION 1201.
Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise
specified as contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided
for by the terms of any Securities 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 such Securities is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of any Securities, 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 as provided for by the terms of such Securities.
SECTION 1202.
Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and
(2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the
terms of such Securities; provided that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in
the Securities so to be redeemed, for redemption through operation of the
43
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 45 days prior (unless a shorter period
shall be satisfactory to the Trustee) to each sinking fund payment date for any Securities, 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 pursuant to Section 1202 and
will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days prior to 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.
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301.
Company’s Option to Effect Defeasance or Covenant Defeasance.
The Company may at its
option, at any time, elect to have either Section 1302 or Section 1303 applied to the Outstanding Securities of any series upon compliance with the conditions set forth below in this Article XIII.
SECTION 1302.
Defeasance and Discharge.
Upon the Company’s exercise of the option provided in Section 1301 applicable to this Section, the Company shall be deemed to have been discharged from its obligations with respect to the
Outstanding Securities of any series on the date the conditions set forth in Section 1304 are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all its other obligations under the Securities of such series and this Indenture insofar as the Securities of such series are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of the Securities of
such series to receive, solely from the trust fund described in Section 1304 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on the Securities of such series when such payments
are due, (B) the Company’s obligations with respect to such Securities under Sections 305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (D) this Article XIII. Subject to
compliance with this Article XIII, the Company may exercise its option under this Section 1302 notwithstanding the prior exercise of its option under Section 1303.
SECTION 1303.
Covenant Defeasance.
Upon the Company’s exercise of the
option provided in Section 1301 applicable to this Section, (i) the Company shall be released from its obligations with respect to the Securities of such Series under Section 801, Sections 1004 through 1009, inclusive, and any
covenants provided pursuant to Section 301(12), 901(2) or 901(7) for the benefit of the Holders of such Securities and (ii) the occurrence of an event specified in Sections 501(4), (5), (6) or (7) shall not be deemed to be an
Event of Default on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter, “covenant defeasance”). For this purpose, such covenant defeasance
44
means that the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section or Clause whether directly or indirectly
by reason of any reference elsewhere herein to any such Section or Clause or by reason of any reference in any such Section or Clause to any other provision herein or in any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
SECTION 1304.
Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 1302 or Section 1303 to the then Outstanding Securities of
any series:
(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or
another trustee satisfying the requirements of Section 609 who shall agree to comply with the provisions of this Article XIII applicable to it) as trust funds in trust for the purpose of making the following payments specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of the Securities of such series, (A) money in an amount, or (B) Government Obligations which through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of, premium, if any, and each installment of
interest on the Securities on the Stated Maturity of such principal or installment of interest in accordance with the terms of this Indenture and of the Securities of such series. For this purpose, “Government Obligations” means, with
respect to any series of Securities, securities that are (x) direct obligations of the government that issued the currency in which such series is denominated (or, if such series is denominated in euro, the direct obligations of any government
that is a member of the European Monetary Union) for the payment of which its full faith and credit is pledged or (y) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of such government the payment
of which is unconditionally guaranteed as a full faith and credit obligation by such government, which, in either case, are not callable or redeemable at the option of the issuer thereof and shall also include a depositary receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any Government Obligation where the relevant government is the United States of America or a specific payment of principal of or interest on any such Government
Obligation held by such custodian for the account of the holder of such depositary receipt,
provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the such Government Obligation or the specific payment of principal of or interest on such Government Obligation evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any Securities or any series of Securities, as the case
may be, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture
there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the Outstanding Securities of such series will not recognize gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit, defeasance and
discharge had not occurred.
45
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such series will not recognize gain or loss for Federal
income tax purposes as a result of such deposit and covenant defeasance and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had
not occurred.
(4) No Event of Default or event which with notice or lapse of time or both would become an
Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit or, insofar as subsections 501(5) and (6) are concerned, at any time during the period ending on the 90th day after
the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(5) Such defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest as defined in Section 608 and for purposes of the Trust Indenture Act with respect to any
securities of the Company.
(6) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound.
(7) The Company shall have delivered to the Trustee and Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance
under Section 1302 or the covenant defeasance under Section 1303 (as the case may be) have been complied with.
(8) Such defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company as defined in the Investment Company Act, or such trust shall be
qualified under such act or exempt from regulation thereunder.
(9) At the time of such deposit, (A) no
default in the payment of any principal of or premium or interest on any Senior Debt shall have occurred and be continuing, (B) no event of default with respect to any Senior Debt shall have resulted in such Senior Debt becoming, and continuing
to be, due and payable prior to the date on which it would otherwise have become due and payable (unless payment of such Senior Debt has been made or duly provided for), and (C) no other event of default with respect to any Senior Debt shall
have occurred and be continuing permitting (after notice or lapse of time or both) the holders of such Senior Debt (or a trustee on behalf of such holders) to declare such Senior Debt due and payable prior to the date on which it would otherwise
have become due and payable.
SECTION 1305.
Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous
Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying trustee (solely for purposes of this Section and Section 1306, the Trustee and any such other trustee are referred to collectively, for purposes of this
Section 1305, as the “Trustee”) pursuant to Section 1304 in respect of the Securities of such series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities of such series 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 Holders of the Securities of such series, of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest, but such money need not be segregated from other funds except to the extent required by law.
46
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the Government Obligations deposited pursuant to Section 1304 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the
Outstanding Securities.
Anything in this Article XIII to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon Company Request any money or Government Obligations held by it as provided in Section 1304 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance.
SECTION 1306.
Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with Section 1302 or 1303 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company’s obligations under this Indenture and the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to this Article XIII until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 1302 or 1303;
provided
,
however
, that if the Company makes any payment of principal of (and premium, if any) or interest on any Security following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of the Securities of such series to receive such payment from the money held by the Trustee or the Paying Agent.
ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 1401.
Securities Subordinate to Senior Debt
.
The Company covenants and agrees, and each Holder of Securities of any series by the Holder’s acceptance thereof likewise covenants and agrees, that, to the extent and in the manner hereinafter set
forth in this Article, subject to the provisions of Article IV and Article XIII and except as may otherwise be specified as contemplated by Section 301 and set forth in the Securities of a series, the indebtedness represented by the Securities
of such series and the payment of the principal of, and any premium and interest on, each and all of the Securities of such series are hereby expressly made subordinate and junior in right of payment to the prior payment in full of all amounts then
due and payable in respect of all Senior Debt of the Company, to the extent and in the manner herein set forth (unless a different manner is set forth in the Securities of such series). No provision of this Article shall prevent the occurrence of
any default or Event of Default hereunder.
Senior Debt shall not be deemed to have been paid in full unless the holders
thereof shall have received cash, securities or other property equal to the amount of such Senior Debt then outstanding.
SECTION 1402.
Payment Over of Proceeds upon Dissolution, Etc.
In the event of:
(i) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar
proceeding relating to the Company, its creditors or its property,
47
(ii) any proceeding for the liquidation, dissolution or other winding up of
the Company, whether voluntary or involuntary, or bankruptcy proceedings,
(iii) any assignment by the Company
for the benefit of its creditors,
(iv) any other marshalling of the assets of the Company,
all Senior Debt shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made by the Company
on account of the Securities of any series. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or a readjustment, the
payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities of any series, to the payment of all Senior Debt at the time outstanding and to any
securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect to the Securities of any series shall be paid or
delivered directly to the holders of Senior Debt in accordance with the priorities then existing among such holders until all Senior Debt shall have been paid in full. If, notwithstanding the provisions of this Article XIV, any payment or
distribution on account of the Securities of any series that is prohibited under this Article XIV shall be received by the Trustee before all the Senior Debt has been paid in full, to the extent that the Trustee has actual knowledge that such
payment or distribution is prohibited under this Article XIV, such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Debt at the time outstanding in
accordance with the priorities then existing among such holders for application to the payment of all Senior Debt remaining unpaid, to the extent necessary to pay all such Senior Debt in full.
SECTION 1403.
Subrogation to Rights of Holders of Senior Debt.
Upon the payment in full of all Senior Debt, the rights of the holders of Securities of any series shall be subrogated to all the rights of any holders of Senior Debt to receive any further payments or
distributions applicable to the Senior Debt until the Securities of any series shall have been paid in full, and such payments or distributions received by the Holders of Securities of any series by reason of such subrogation, of cash, securities or
other property which otherwise would be paid or distributed to the holders of Senior Debt, shall, as between the Company and its creditors other than the holders of Senior Debt, on the one hand, and the Holders of Securities of any series, on the
other, be deemed to be a payment by the Company on account of Senior Debt, and not on account of the Securities of any series.
SECTION 1404.
Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of Securities of any series on the one hand and the holders of Senior Debt on the other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Securities of such series is
intended to or shall
(a) impair, as among the Company, its creditors other than holders of Senior Debt and the Holders of
Securities of such series, the obligation of the Company, which is absolute and unconditional (and which, subject to the rights under this Article of the holders of Senior Debt, is intended to rank equally with all other general obligations of the
Company), to pay to the Holders of Securities of such series the principal of, and any premium and interest on, the Securities of such series as and when the same shall become due and payable in accordance with their terms; or
(b) affect the relative rights against the Company of the Holders of Securities of such series and creditors of the Company, as the case may
be, other than the holders of Senior Debt; or
(c) prevent the Trustee or the Holder of any Securities of such series from
exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article of the holders of Senior Debt to
48
receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1405.
Trustee to Effectuate Subordination.
Each Holder of
Securities of any series by such Holder’s acceptance thereof authorizes and directs the Trustee on such Holder’s behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1406.
No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with.
Without in any way
limiting the generality of the foregoing paragraph, the holders of Senior Debt may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of the Securities of any series, without incurring responsibility
to the Holders of the Securities of such series and without impairing or releasing the subordination provided in this Article or the obligations hereunder of the Holders of Securities of such series to the holders of Senior Debt, do any one or more
of the following:
(a) change the manner, place or terms of payment or extend the time of payment of, or renew or alter,
Senior Debt, or otherwise amend or supplement in any manner Senior Debt or any instrument evidencing the same or any agreement under which Senior Debt is outstanding;
(b) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Debt;
(c) release any Person liable in any manner for the collection of Senior Debt; and
(d) exercise or refrain from exercising any rights against the Company and any other Person.
SECTION 1407.
Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact known to the Company which would prohibit the making
of any payment to or by the Trustee in respect of the Securities of any series pursuant to the provisions of this Article. Notwithstanding the provisions of this Article or any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of any Securities of any series pursuant to the provisions of this Article, unless and until the Trustee shall have received
written notice thereof from the Company or a holder or holders of Senior Debt or from any trustee therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 603, shall be entitled in all
respects to assume that no such facts exist;
provided
,
however
, that if the Trustee shall not have received the notice provided for in this Section at least two Business Days prior to the date upon which by the terms hereof any money
may become payable for any purpose (including, without limitation, the payment of the principal of, and any premium and interest on, any Securities of any series), then, anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such moneys and to apply the same to the purpose for which they were received and shall not be affected by any notice to the contrary that may be received by it within two Business Days prior to such date.
49
Subject to the provisions of Section 603, the Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a holder of Senior Debt (or a trustee therefor) to establish that such notice has been given by a holder of Senior Debt (or a trustee therefor). In the event that the Trustee
determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Debt to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Debt held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.
SECTION 1408.
Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in this Article, the Trustee, subject to the provisions of
Section 603, and the Holders of Securities of any series shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders of Securities of such series, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Debt and other
indebtedness of the Company, as the case may be, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 1409.
Trustee Not Fiduciary for Holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of such Senior Debt shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt with respect to its obligations
and duties created hereunder and shall not be liable to any such holders or creditors if it shall in good faith pay over or distribute to Holders of Securities of any series or to the Company or to any other Person cash, property or securities to
which any holders of Senior Debt shall be entitled by virtue of this Article or otherwise.
SECTION 1410.
Rights of Trustee as Holder of
Senior Debt; Preservation of Trustee’s Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at any time be held by it, to the same extent as any other holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section 607.
SECTION 1411.
Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term “Trustee” as used in this Article shall in such case
(unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in addition to or in place of the
Trustee;
provided
,
however
, that this Section shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
50
SECTION 1412.
Certain Conversions or Exchanges Deemed Payment.
For the purposes of this Article only, (a) the issuance and delivery of securities which are subordinate in right of payment to all then
outstanding Senior Debt to substantially the same extent as the Securities are so subordinate (“Junior Securities”) (or cash paid in lieu of fractional shares) upon conversion or exchange of Securities of any series as contemplated by
Section 301 shall not be deemed to constitute a payment or distribution on account of the principal of or premium or interest on Securities of such series or on account of the purchase or other acquisition of Securities of such series, and
(b) the payment, issuance or delivery of cash, property or securities (other than Junior Securities and cash paid in lieu of fractional shares) upon conversion or exchange of Securities of any series shall be deemed to constitute payment on
account of the principal of such Securities of such series. Nothing contained in this Article or elsewhere in this Indenture or in the Securities of any series is intended to or shall impair, as among the Company, its creditors other than holders of
Senior Debt and the Holders of Securities of such series the right, which is absolute and unconditional, of the Holder of any Securities of such series to convert or exchange such Securities of such series in accordance with the terms specified as
contemplated by Section 301.
SECTION 1413.
Defeasance of this Article Fourteen.
The subordination of the Securities provided by this Article XIV is expressly made subject to the provisions for defeasance or covenant
defeasance in Article XIII and, anything herein to the contrary notwithstanding, upon the effectiveness of any such defeasance or covenant defeasance, the Securities then outstanding shall thereupon cease to be subordinated pursuant to this Article
XIV.
51
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, all as of the day and year first above written.
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STRYKER CORPORATION
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By:
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Name:
Title:
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U.S. BANK NATIONAL ASSOCIATION
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By:
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Name:
Title:
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EXHIBIT A
Form of Face of Security
STRYKER CORPORATION
Stryker Corporation, a Michigan corporation (herein called the “Company”, which term
includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to , or
registered assigns, the principal sum of Dollars on
[
if the Security is to bear interest prior to Maturity, insert
—, and to pay interest thereon from
or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on
and in
each year, commencing , at the rate of % per annum, until
the principal hereof is paid or made available for payment [
if applicable, insert
—, provided that any principal and premium, and any such installment of interest, which is overdue shall bear interest at the rate of
% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for
payment, and such interest shall be payable on demand]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the
or
(whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either
be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of
this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture].
[If
the Security is not to bear interest prior to Maturity, insert
— The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in
such case the overdue principal and any overdue premium shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any overdue principal or premium shall be payable on demand.
Payment of the principal of (and premium, if any) and any such interest on this Security will be made at the office or agency of the Company maintained for that purpose in
, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and
private debts;
provided
,
however
, that at the option of the Company payment of interest may be made by (i) check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or
(ii) wire transfer in immediately available funds to the place and account designated in writing by the Person entitled to such payment as specified in the Security Register.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereof has been
executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
A-1
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.
Dated:
A-2
EXHIBIT A1
Form of Reverse of Security
This Security is one of
a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of
(herein called the “Indenture”, which term shall have the meaning assigned to it in such instrument), between the
Company and U.S. Bank National Association, a nationally chartered banking association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture
for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee[, the holders of Senior Debt] and the Holders of the Securities and of the terms upon which the Securities are, and are to
be, authenticated and delivered. [This Security is one of the series designated on the face hereof
,
limited in aggregate principal amount to
$
.
]
[
If applicable, insert
— The Securities of this series are subject to redemption upon not less than 30 days’ notice by mail,
[if
applicable, insert
— (1) on in any year commencing with the year
and ending with the year
through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at
any time [
if applicable, insert
— (1) on or after ], as a whole or in part, at the election of the Company, at
the following Redemption Prices (expressed as percentages of the principal amount): If redeemed
[if applicable, insert —
on or before
, %, and if redeemed] during the 12-month period
beginning of the years indicated,
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Year
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Redemption
Price
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Year
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Redemption
Price
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and thereafter at a Redemption Price equal to
% of the principal amount, together in the case of any such redemption
[if applicable, insert —
(whether through operation of the sinking fund or otherwise)] with
accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable,
insert
— The Securities of this series are subject to redemption upon not less than 30 days’ notice by mail, (1) on
in any year commencing with the year
and ending with the year
through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time
[if applicable, insert —
on or after
], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning
of the years indicated,
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Year
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Redemption Price for
Redemption Through Operation
of the Sinking Fund
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Redemption Price for
Redemption Otherwise Than
Through Operation of the
Sinking Fund
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A1-1
and thereafter at a Redemption Price equal to
% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred
to on the face hereof, all as provided in the Indenture.]
[If applicable, insert
— Notwithstanding the foregoing,
the Company may not, prior to redeem any Securities of this series as contemplated by [
if applicable, insert
—
Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than % per annum.]
[If applicable, insert —
The sinking fund for this series provides for the redemption on in each year
beginning with the year and ending with the year
of
[if applicable, insert
— not less than $
(“mandatory sinking fund”) and not more than] $ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company
otherwise than through
[if applicable, insert —
mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert —
mandatory] sinking fund payments otherwise required to be made
[if applicable,
insert
— , in the inverse order in which they become due].]
[If the Security is subject to redemption of any
kind, insert —
In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.]
The indebtedness evidenced by this Security is, to the extent provided in the Indenture, subordinate and junior in right of payment
to the prior payment in full of all Senior Debt, and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by such
provisions of the Indenture, (b) authorizes and directs the Trustee on his or her behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c) appoints the Trustee his or
her attorney-in-fact for any and all such purposes. Each Holder hereof, by his or her acceptance hereof, hereby waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Debt,
whether now outstanding or hereafter incurred, and waives reliance by each such Holder upon said provisions.
[If
applicable, insert
— The Securities shall [not be superior in right of payment to, and shall] rank pari passu with[,] —
insert description of existing debt of the Company that is intended to rank on a parity with the
Securities.
]
[If applicable, insert —
The Indenture contains provisions for defeasance at any time of
[the entire indebtedness of this Security] [or] [certain restrictive covenants and Events of Default with respect to this Security] [, in each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert —
If an Event of Default with respect to
Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the
Security
is an Original Issue Discount Security, insert
— If an Event of Default with respect to Securities of
this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to —
insert formula
for determining the amount.
Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall
be legally enforceable), all of the Company’s obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.]
A1-2
The Indenture permits, with certain exceptions as therein provided, the amendment thereof
and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series
at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt- of such notice, request and offer of indemnity. The foregoing shall not apply to any suit
instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 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 this Security is registered
as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
A1-3
Exhibit 5.1
Warner Norcross & Judd LLP
900 Fifth Third Center
111 Lyon St NW
Grand Rapids MI 49503-2487
616-752-2000
www.wnj.com
January 12, 2010
Stryker Corporation
2825 Airview Boulevard
Kalamazoo, Michigan 49002
Re:
Registration Statement on Form S-3
Ladies and Gentlemen:
At your request, we have examined the registration statement on Form S-3 (the “Registration Statement”) being filed by Stryker
Corporation, a Michigan corporation (the “Company”), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”), relating to the issuance and sale by the Company from time to time,
pursuant to Rule 415 (“Rule 415”) of the General Rules and Regulations promulgated under the Act, of the following securities:
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(a)
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shares of Stryker common stock, $0.10 par value per share (the “Common Shares”);
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(b)
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shares of preferred stock (the “Preferred Shares”), to be issued in one or more series;
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(c)
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senior debt securities (the “Senior Debt Securities”) and subordinated debt securities (the “Subordinated Debt Securities” and, together with the
Senior Debt Securities, the “Debt Securities”), each of which may be issued in one or more series;
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(d)
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warrants (the “Warrants”) to purchase Debt Securities, common stock, preferred stock or securities of third parties or other rights, including rights to
receive payment in cash or securities based on the value, rate or price of one or more specified commodities, currencies, securities or indices, or any combination of the foregoing;
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(e)
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subscription rights (the “Subscription Rights”) to purchase Debt Securities, Preferred Shares, Common Shares or other securities;
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(f)
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stock purchase contracts (the “Stock Purchase Contracts”), obligating holders to purchase from or sell to the Company, and obligating the Company to sell to
or purchase from the holders, a specified number of Common Shares or other securities at a future date or dates; and
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(g)
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stock purchase units (the “Stock Purchase Units”) each consisting of a Stock Purchase Contract and Debt Securities, Preferred Shares or debt obligations of
third parties, including United States Treasury obligations, any other securities described in the applicable prospectus supplement or any combination of the foregoing, securing a holder’s obligations under the Stock Purchase Contracts.
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According to the Registration Statement, any Senior Debt Securities are to be issued
pursuant to the Senior Indenture proposed to be entered into between the Company and U.S. Bank National Association (the “Trustee”), a form of which is filed as an exhibit to the Registration Statement (the “Senior Indenture”).
Any Subordinated Debt Securities are to be issued pursuant to the Subordinated Indenture proposed to be entered into between the Company and the Trustee, a form of which is filed as an exhibit to the Registration Statement (the “Subordinated
Indenture” and, together with the Senior Indenture, the “Indentures”).
According to the Registration
Statement, any Warrants are to be issued under a Warrant Agreement between the Company and a Warrant Agent. Any Subscription Rights are to be issued pursuant to a Subscription Rights Agreement between the Company and a Subscription Agent. Any Stock
Purchase Contracts are to be issued pursuant to a Stock Purchase Contract Agreement between the Company and a Stock Purchase Contract Agent.
The Common Shares, the Preferred Shares, Debt Securities, the Warrants, the Subscription Rights, the Stock Purchase Contracts, the Stock Purchase Units are collectively referred to as the “Offered
Securities.”
In arriving at the opinions expressed below, we have examined and relied, to the extent we deemed proper,
on originals or copies, certified or otherwise identified to our satisfaction, of: (1) the Registration Statement; (2) the Restated Articles of Incorporation of the Company, as amended to the date of this opinion (the
“Articles”); (3) the By-Laws of the Company, as in effect on the date of this opinion (the “By-Laws”); (4) a copy of certain resolutions of the Board of Directors of the Company, or a duly authorized committee thereof,
relating to the issuance and sale of the Offered Securities and other matters; (5) the form of Senior Indenture; and (6) the form of Subordinated Indenture. We have also examined originals or copies, certified or otherwise identified to
our satisfaction, of such records of the Company and such agreements, certificates of public officials, certificates of officers or other representatives of the Company and others, and such other documents as we have deemed appropriate as a basis
for our opinions.
In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed, photostatic, electronic or facsimile copies and the authenticity of the
originals of such documents. In making our examination of executed documents or documents to be executed, we have assumed that the parties thereto, other than the Company, had or will have the power, corporate or other, to enter into and perform all
obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties, of such documents and that (except to the extent we have opined on such matters below) such
documents constitute or will constitute valid and binding obligations of the parties thereto.
We have also assumed that any
supplemental indenture to either of the Indentures and any resolution of the Board of Directors and any officer’s certificate executed and delivered pursuant to either of the Indentures, in any such case, pursuant to which any Debt Securities
are issued, will comply with such Indenture as supplemented, and the form and terms of such Debt Securities will comply with such Indenture as then supplemented (including by any supplemental indenture) and any resolution of the Board of Directors
and/or officer’s certificate.
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In addition, we have assumed that:
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(a)
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the Registration Statement and any amendments thereto (including post-effective amendments) will have become effective under the Act, and all Offered Securities will be
sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and any applicable prospectus supplement;
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(b)
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an appropriate prospectus supplement with respect to the applicable Offered Securities has been prepared, delivered and filed in compliance with the Act and the
applicable rules and regulations thereunder;
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(c)
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if any Offered Securities are to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to such Offered Securities has
been duly authorized, executed and delivered by the Company and the other parties thereto;
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(d)
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the consideration paid for any shares of Common Stock or Preferred Stock will comply with the Articles and applicable law, as then in effect;
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(e)
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with respect to the any third party securities to be offered as part of the Offered Securities (“Third Party Securities”), we have assumed the taking by third
parties of all necessary corporate or other action to authorize and approve the issuance and terms of any Third Party Securities, the terms of the offering thereof and related matters;
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(f)
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the Indentures and any supplemental indenture or officer’s certificate relating to the Indentures, the Subscription Rights Agreements, the Subscription Rights
Certificates, the Warrant Agreements, and the Stock Purchase Contract Agreements will be duly authorized, executed and delivered by the parties thereto, and that any Debt Securities, Subscription Rights, Warrants, Stock Purchase Contracts or Stock
Purchase Units that may be issued will be manually authenticated, signed or countersigned, as the case may be, by duly authorized officers of the Trustee, the Subscription Agents, the Warrant Agents, the Stock Purchase Contract Agents or the Stock
Purchase Unit Agents, as the case may be.
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(g)
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the form and terms of the Debt Securities, when established, and the form and terms of any Warrants, Subscription Rights, Stock Purchase Contracts, Stock Purchase
Units, and the form and terms of any and all Offered Securities or other securities (or other obligations, rights, commodities or other subject matter) comprising the Offered Securities or subject thereto (in the case of the Warrants, Stock Purchase
Contracts and Stock Purchase Units), the offering, issuance, sale and delivery thereof by the Company and the incurrence and performance of the Company’s obligations thereunder or in respect of (including, without limitation, its obligations
under any related Indenture, Warrant Agreement, Subscription Rights Agreement, or Stock Purchase Contract Agreement) in accordance with the terms thereof, will comply with, and
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will not violate, conflict with or constitute a default under (i) the Articles or By-laws, as then in effect (ii) any agreement or instrument to which the Company or any of its
properties is subject, (iii) any law, rule or regulation to which the Company or any of its properties is subject (including but not limited to federal and state securities laws), (iv) any judicial or regulatory order or decree of any
governmental authority, (v) any consent, approval, license, authorization or validation of, or filing, recording or registration with, any governmental authority, (vi) any applicable law, rule, regulation, order, judgment, decree, award,
or agreement binding upon the Company, or to which the issuance, sale, and delivery of such Offered Securities, or the incurrence and performance of such obligations, may be subject, or (vii) violate any applicable public policy, or be subject
to any defense in law or equity. In addition, we have assumed the receipt by each person to whom or for whose benefit an Offered Security is to be issued (collectively, the “Beneficial Holders”) of a certificate for such Offered Security
or the receipt by the Depository Trust Company, acting as agent, on behalf of all Beneficial Holders of the class or series of Offered Securities of which such Offered Security is one, of a global security then evidencing such Offered Securities,
and the issuance and sale of and payment for the Offered Securities so acquired, in accordance with the applicable purchase, underwriting or similar agreement approved by the Board of Directors of the Company and the Registration Statement
(including any applicable prospectus supplement).
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As to any facts material to the opinions expressed which
we have not independently established or verified, we have relied upon statements and representations of officers and other representatives of the Company and others.
We express no opinion concerning the contents of the Registration Statement or the Prospectus, other than as to the validity of the Offered Securities. We express no opinion as to the applicability of,
compliance with or effect of, the law of any jurisdiction other than United States Federal law and the laws of the State of Michigan. To the extent any document relevant to this opinion provides that it is governed by the laws of a jurisdiction
other than the State of Michigan, we are nevertheless rendering this opinion as if such document were governed by the internal laws of the State of Michigan. The Offered Securities may be issued from time to time on a delayed or continuous basis,
and this opinion is limited to the laws, including the rules and regulations, as in effect on the date of this opinion, which laws are subject to change with possible retroactive effect.
Based upon, subject to and limited by the foregoing, we are of the opinion that, as of the date of this opinion:
1. With respect to any Common Shares to be offered pursuant to the Registration Statement (the “Offered Common Shares”), when
(1) the issuance and sale of the Offered Common Shares have been duly established by all necessary corporate action; and (2) if certificated, certificates representing the Offered Common Shares have been duly executed and delivered by the
proper officers of the Company to the purchasers thereof against payment of the agreed-upon consideration therefor in the manner contemplated in the Registration Statement or any prospectus supplement relating thereto, the Offered Common Shares,
when issued and sold in
4
accordance with the applicable underwriting agreement or any other duly authorized, executed and delivered applicable purchase agreement, or upon conversion, exchange or exercise of any other
Offered Security or the instrument governing such Offered Security providing for such conversion, exchange or exercise, will be validly issued, fully paid and nonassessable. In rendering the opinion set forth in this Paragraph 1, we have assumed
that, at the time of issuance of any Offered Common Shares, the Company’s Restated Articles of Incorporation, the By-Laws and the Michigan Business Corporation Act (the “MBCA”) shall not have been amended so as to affect the validity
of such issuance.
2. With respect to any series of Preferred Shares to be offered pursuant to the Registration Statement (the
“Offered Preferred Shares”), when (1) the terms of the Offered Preferred Shares and of their issuance and sale have been duly established by all necessary corporate action in conformity with the Company’s Articles (as then in
effect), including the Certificate of Amendment related to the rights and preferences of the Offered Preferred Shares (the “Certificate of Amendment”), and By-Laws (as then in effect), which terms do not violate any applicable law or
result in a default under or breach of any agreement or instrument binding upon the Company or any of its subsidiaries and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company or
any of its subsidiaries; (2) the filing of the Certificate of Amendment with the Michigan Department of Energy, Labor and Economic Growth has duly occurred; and (3) if certificated, certificates representing the Offered Preferred Shares
have been duly executed and delivered by the proper officers of the Company to the purchasers thereof against payment of the agreed-upon consideration therefor in the manner contemplated in the Registration Statement or any prospectus supplement
relating thereto, any Offered Preferred Shares, when issued and sold in accordance with the applicable underwriting agreement or any other duly authorized, executed and delivered applicable purchase agreement, or upon conversion, exchange or
exercise of any other Offered Security or the instrument governing such Offered Security providing for such conversion, exchange or exercise, will be validly issued, fully paid and nonassessable. In rendering the opinion set forth in this paragraph,
we have assumed that, at the time of issuance of any Offered Preferred Shares, the Company’s Restated Articles of Incorporation, By-Laws and the MBCA shall not have been amended so as to affect the validity of such issuance.
3. With respect to any Debt Securities to be offered pursuant to the Registration Statement (the “Offered Debt Securities”), when
(1) the applicable Indenture relating to such Offered Debt Securities has been duly authorized, executed and delivered; (2) the applicable Indenture relating to such Offered Debt Securities has been duly authorized, executed and delivered;
(3) the Offered Debt Securities have been duly authorized by the Board of Directors of the Company (or a duly authorized committee thereof); (4) the terms of the Offered Debt Securities and of their issuance have been duly established by
all necessary corporate action; and (5) the Offered Debt Securities have been duly executed and countersigned in accordance with the applicable Indenture and duly issued and delivered to the purchasers thereof against payment of the agreed-upon
consideration therefor in the manner contemplated in the Registration Statement or any prospectus supplement relating thereto, the Offered Debt Securities, when issued and sold in accordance with the applicable Indenture and the applicable
underwriting agreement, if any, or any other duly authorized, executed and delivered valid and binding purchase or agency agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their
respective terms.
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4. With respect to any Warrants to be offered pursuant to the Registration Statement (the
“Offered Warrants”), when (1) a warrant agreement relating to the Offered Warrants (the “Warrant Agreement”) has been duly authorized by all necessary corporate action, executed and delivered and the Offered Warrants and the
securities of the Company into which the Offered Warrants are exercisable have been duly authorized by the Board of Directors of the Company (or a duly authorized committee thereof); (2) the terms of the Offered Warrants and of their issuance
and sale have been duly established in conformity the Warrant Agreement; and (3) the Offered Warrants have been duly executed and countersigned in accordance with the Warrant Agreement and duly issued and delivered to the purchasers thereof
against payment of the agreed-upon consideration therefor in the manner contemplated in the Registration Statement or any prospectus supplement or term sheet relating thereto, the Offered Warrants, when issued and sold in accordance with the
applicable underwriting agreement or any other duly authorized, executed and delivered applicable purchase agreement, will be duly authorized.
5. With respect to any Subscription Rights to be offered by the Company (the “Offered Subscription Rights”), when (1) the Board of Directors, including any appropriate committee appointed
thereby, and appropriate officers of the Company have taken all necessary corporate action to approve the issuance and terms of the Offered Subscription Rights, the Offered Securities into which the Offered Subscription Rights are exercisable and
related matters; (2) a Subscription Rights Certificate relating to the Offered Subscription Rights has been duly authorized, executed and delivered by the Company and the other parties thereto; (3) the terms of the Offered Subscription
Rights and of their issuance and sale have been duly established; (4) the Debt Securities, the Common Stock or the Preferred Stock relating to such Offered Subscription Rights have been duly authorized for issuance upon payment of the agreed
upon consideration to be set forth in such Offered Subscription Rights and in the manner contemplated in the Registration Statement and any prospectus supplement relating thereto; (5) the Subscription Rights Certificates, in the form to be
filed on a Current Report on Form 8-K or other applicable periodic report in the manner contemplated in the Registration Statement or any prospectus supplement relating thereto, have been duly executed, countersigned, delivered, issued and sold upon
payment of the agreed-upon consideration therefor, the Offered Subscription Rights, when issued and sold or otherwise distributed in accordance with the applicable Subscription Rights Certificate, and the applicable underwriting agreement, if any,
or any other duly authorized, executed and delivered valid and binding purchase or agency agreement, will be duly authorized and validly issued.
6. With respect to any Stock Purchase Contracts to be offered pursuant to the Registration Statement (the “Offered Stock Purchase Contracts”), when (1) a stock purchase contract agreement
relating to the Offered Stock Purchase Contracts (the “Stock Purchase Contract Agreement”) has been duly authorized, executed and delivered and the Offered Stock Purchase Contracts have been duly authorized by the Board of Directors of the
Company (or a duly authorized committee thereof); (2) the terms of the Offered Stock Purchase Contracts and of their issuance and sale have been duly established by all necessary corporate action in conformity with the Stock Purchase Contract
Agreement, including all necessary corporate action to authorize the issuance and terms of the Offered Stock Purchase Contracts (including authorization of the issuance of Common Shares or Preferred Shares to be issued
6
pursuant to the Offered Stock Purchase Contracts); and (3) the Offered Stock Purchase Contracts have been duly executed and countersigned in accordance with the Stock Purchase Contract
Agreement and duly issued and delivered to the purchasers thereof against payment of the agreed-upon consideration therefor in the manner contemplated in the Registration Statement or any prospectus supplement relating thereto, the Offered Stock
Purchase Contracts, when issued and sold in accordance with the applicable underwriting agreement or any other duly authorized, executed and delivered applicable purchase agreement, will be duly authorized.
7. With respect to any Stock Purchase Units to be offered pursuant to the Registration Statement (the “Offered Stock Purchase
Units”), when (1) the terms of the collateral arrangements, if any, relating to the Stock Purchase Units (the “Collateral Arrangements”) has been duly authorized, executed and delivered and the Offered Stock Purchase Units have
been duly authorized by the Board of Directors of the Company (or a duly authorized committee thereof); (2) the terms of the Offered Stock Purchase Units and of their issuance and sale have been duly established in conformity with the
Company’s Restated Articles of Incorporation (as then in effect), the Company’s By-Laws (as then in effect) and the Collateral Arrangements, if any, including all necessary corporate action to authorize the issuance and terms of any
Collateral Arrangements or the Offered Stock Purchase Contracts that are a component of the Stock Purchase Units (including authorization of the issuance of Common Shares or Preferred Shares to be issued pursuant to the Offered Stock Purchase
Contracts); and (3) the Offered Stock Purchase Units have been duly executed and countersigned in accordance with the Collateral Arrangements, if any, and duly issued and delivered to the purchasers thereof against payment of the agreed-upon
consideration therefore in the manner contemplated in the Registration Statement or any prospectus supplement or term sheet relating thereto, the Offered Stock Purchase Units, when issued and sold in accordance with the applicable underwriting
agreement or any other duly authorized, executed and delivered applicable purchase agreement, will be duly authorized.
Our
opinions set forth in Paragraphs 3 are subject to the effects of (a) bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights
generally, (b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), including, without limitation, (i) the possible unavailability of specific performance, injunctive relief
or any other equitable remedy and (ii) concepts of materiality, reasonableness, good faith and fair dealing, (c) public policy considerations which may limit the rights of the parties to obtain further remedies, and (d) the waivers of
any usury defense contained in the Indentures which may be unenforceable. We express no opinion herein with respect to provisions relating to severability or separability.
The opinions expressed above are as of the date of this letter, and we do not assume an obligation to update or supplement those opinions to
reflect a fact or circumstance that in the future comes to our attention or a change in law that in the future occurs or becomes effective. This letter is limited to the matters set forth in it, and no opinions are implied or may be inferred beyond
those expressly stated above.
7
We hereby consent to the references to our firm under the caption “Legal Matters”
in the Registration Statement and any prospectus supplement and to the use of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not hereby admit that we come within the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission thereunder.
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Very truly yours,
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WARNER NORCROSS & JUDD LLP
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By
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/s/ Bruce C. Young
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Bruce C. Young, a Partner
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Exhibit 5.2
Skadden, Arps, Slate, Meagher & Flom LLP
155 North
Wacker Drive
Chicago, Illinois 60606-1720
(312) 407-0700
Fax: (312) 407-0411
http://www.skadden.com
January 12, 2010
Stryker Corporation
2825 Airview Boulevard
Kalamazoo, Michigan 49002
Re:
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to Stryker Corporation, a
Michigan corporation (the “Company”), in connection with the registration statement on Form S-3 (the “Registration Statement”) to be filed on the date hereof by the Company with the U.S. Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as amended (the “Act”). The Registration Statement relates to the issuance and sale from time to time, pursuant to Rule 415 of the General Rules and Regulations of the Commission
promulgated under the Act, of the following securities by the Company: (i) shares of Common Stock of the Company, par value $0.10 per share (the “Common Stock”); (ii) shares of Preferred Stock of the Company, par value $1.00 per
share, to be issued in one or more series (the “Preferred Stock”); (iii) debt securities of the Company representing unsecured obligations of the Company to be issued pursuant to a senior indenture (the “Senior Debt
Securities”) between the Company and U.S. Bank National Association (the “Trustee”), the form of which is being filed as an exhibit to the Registration Statement (the “Senior Indenture”), and subordinated debt securities
(“Subordinated Debt Securities” and, together with the Senior Debt Securities, the “Debt Securities”) to be issued pursuant to a subordinated indenture between the Company and the Trustee, the form of which is being filed as an
exhibit to
Stryker Corporation
January 12, 2010
Page
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the Registration Statement (the “Subordinated Indenture” and, together with the Senior Indenture, the “Indentures”); (iv) warrants (the “Warrants”) to purchase
Common Stock, Preferred Stock, Debt Securities or securities of third parties or other rights, including rights to receive payment in cash or securities based on the value, rate or price of one or more specified commodities, currencies, securities
or indices, or any combination of the foregoing, pursuant to one or more warrant agreements (each, a “Warrant Agreement”) proposed to be entered into between the Company and one or more warrant agents to be named in the applicable Warrant
Agreements (each, a “Warrant Agent”); (v) subscription rights (the “Subscription Rights”) to purchase Common Stock, Preferred Stock, Debt Securities or other securities which may be issued under one or more subscription
rights certificates (each, a “Subscription Rights Certificate”) and/or pursuant to one or more subscription rights agreements (each, a “Subscription Rights Agreement”) proposed to be entered into between the Company and one or
more subscription agents to be named in the applicable Subscription Rights Agreements (each, a “Subscription Agent”); (vi) stock purchase contracts (the “Stock Purchase Contracts”) obligating the holders thereof to purchase
from or sell to the Company, and obligating the Company to sell to or purchase from such holders, a specified number of shares of Common Stock or other securities at a future date or dates, which may be issued under one or more stock purchase
contract agreements (each, a “Stock Purchase Contract Agreement”) proposed to be entered into by the Company and one or more stock purchase contract agents to be named in the applicable stock purchase contract agreements (each, a
“Stock Purchase Contract Agent”); (vii) stock purchase units (the “Stock Purchase Units”), each consisting of a Stock Purchase Contract and Debt Securities, Preferred Stock or debt obligations of third parties, including
U.S. Treasury securities, or other securities (or any combination of the foregoing), securing the holders’ obligations to purchase or to sell the securities under the applicable Stock Purchase Contracts; and (viii) such indeterminate
amount and number of each class or series of the foregoing securities as may be issued upon conversion, exchange, exercise or settlement, as applicable, of any other securities that provide for such conversion, exchange, exercise or settlement
(collectively, “Indeterminate Securities”). The Common Stock, the Preferred Stock, the Debt Securities, the Warrants, the Subscription Rights, the Stock Purchase Contracts, the Stock Purchase Units and the Indeterminate Securities are
collectively referred to herein as the “Offered Securities.”
This opinion is being delivered in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined
originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration Statement and (ii) the forms of Indentures being filed as exhibits to the Registration Statement.
Stryker Corporation
January 12, 2010
Page
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We have also examined originals or copies, certified or otherwise identified to our
satisfaction, of such records of the Company and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents as we have deemed necessary or
appropriate as a basis for the opinions set forth below.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photostatic copies and
the authenticity of the originals of such copies. In making our examination of executed documents or documents to be executed, we have assumed that the parties thereto, including the Company, had or will have the power, corporate or other, to enter
into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties of such documents and, except to the extent expressly set forth in
Paragraphs 1 through 5 below, the validity and binding effect thereof on such parties. We have assumed that the Company is and has been duly organized and is and will continue to be validly existing in good standing, and has and will continue to
have the requisite legal status and legal capacity, under the laws of the State of Michigan and that the Company has complied and will comply with all aspects of the laws of all relevant jurisdictions (including the laws of the State of Michigan)
other than the laws of the United States of America and the State of New York in connection with the transactions contemplated by the Indentures, any supplemental indentures thereto, the Warrant Agreements, the Subscription Rights Agreements, the
Stock Purchase Contract Agreements, the Stock Purchase Contracts, the Stock Purchase Units and the Registration Statement. We have also assumed that the Indentures and any supplemental indentures thereto and each Warrant Agreement, Subscription
Rights Agreement, Stock Purchase Contract Agreement and Stock Purchase Unit will be duly authorized, executed and delivered by the applicable Trustee, Warrant Agent, Subscription Agent or Stock Purchase Contract Agent, as the case may be, and, in
the case of the Indentures, in substantially the forms reviewed by us, and that each Debt Security, Warrant, Subscription Rights Certificate, Stock Purchase Contract or Stock Purchase Unit that may be issued will be manually authenticated, signed or
countersigned, as the case may be, by duly authorized officers of the applicable Trustee, Warrant Agent, Subscription Agent or Stock Purchase Contract Agent, as the case may be. We have assumed that the choice of New York law to govern the
Indentures and any supplemental indentures thereto is a valid and legal provision. We have also assumed that New York law will be chosen to govern the Warrant Agreements, the Subscription Rights
Stryker Corporation
January 12, 2010
Page
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Agreements, the Stock Purchase Contract Agreements, the Stock Purchase Contracts and the Stock Purchase Units, that such choice in each case is a valid and legal provision and that the Warrant
Agreements and the Warrants, the Subscription Rights Agreements and the Subscription Rights and the Stock Purchase Contract Agreements, Stock Purchase Contracts and Stock Purchase Units will contain all provisions required under the laws of the
State of Michigan in respect of contracts for the sale of securities issued by a Michigan corporation. As to any facts material to the opinions expressed herein that we did not independently establish or verify, we have relied upon statements and
representations of officers and other representatives of the Company and others.
Our opinions set forth herein are limited to
the laws of the State of New York that, in our experience, are normally applicable to debt securities, warrants, subscription rights, stock purchase contracts and stock purchase units of the type covered by the Registration Statement and, to the
extent that judicial or regulatory orders or decrees or consents, approvals, licenses, authorizations, validations, filings, recordings or registrations with governmental authorities are relevant, to those required under such laws (all of the
foregoing being referred to as “Applicable Law”). We do not express any opinion with respect to the law of any jurisdiction other than Applicable Law or as to the effect of the law of any jurisdiction other than Applicable Law on the
opinions herein stated. The Offered Securities may be issued from time to time on a delayed or continuous basis, and this opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof, which laws are subject to
change with possible retroactive effect.
Based upon the foregoing and subject to the limitations, qualifications, exceptions
and assumptions set forth herein, we are of the opinion that:
1. With respect to any series of Debt Securities to be offered
by the Company pursuant to the Registration Statement, including any Indeterminate Securities constituting Debt Securities of such series (the “Offered Debt Securities”), when (i) the Registration Statement, as finally amended
(including all necessary post-effective amendments), has become effective under the Act and the applicable Indenture has been qualified under the Trust Indenture Act of 1939, as amended, (ii) an appropriate prospectus supplement or term sheet
with respect to the Offered Debt Securities has been prepared, delivered and filed in compliance with the Act and the applicable rules and regulations thereunder, (iii) if the Offered Debt Securities are to be sold pursuant to a firm commitment
underwritten offering, the underwriting agreement with respect to the Offered Debt Securities has been duly authorized, executed and delivered by the Company and the other parties thereto, (iv) the board of directors of the Company (the
“Board of Directors”), including any appropriate committee appointed thereby, and appropriate officers of the Company have taken all
Stryker Corporation
January 12, 2010
Page
5
necessary corporate action to approve the issuance and terms of the Offered Debt Securities, the applicable Indenture and any supplemental indenture thereto and related matters, (v) the
applicable Indenture and any supplemental indenture in respect of the Offered Debt Securities have been duly authorized, executed and delivered by each party thereto, (vi) the terms of the Offered Debt Securities and of their issuance and sale
have been duly established in conformity with the applicable Indenture and any supplemental indenture to be entered into in connection with the issuance of the Offered Debt Securities so as not to violate any applicable law, the Restated Articles of
Incorporation of the Company, as amended and then in effect (the “Articles”), the Bylaws of the Company as then in effect (the “Bylaws”), or result in a default under or breach of any agreement or instrument binding upon the
Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company and the applicable Trustee, and (vii) the Offered Debt Securities have been issued in a form that
complies with the applicable Indenture and have been duly executed and authenticated in accordance with the provisions of such Indenture and any supplemental indenture to be entered into in connection with the issuance of the Offered Debt Securities
and duly delivered to the purchasers thereof upon payment of the agreed upon consideration therefor, the Offered Debt Securities, when issued and sold in accordance with such Indenture and any supplemental indenture to be entered into in connection
with the issuance of the Offered Debt Securities and the applicable underwriting agreement, if any, or any other duly authorized, executed and delivered valid and binding purchase or agency agreement, will be valid and binding obligations of the
Company, enforceable against the Company in accordance with their respective terms, except to the extent that enforcement thereof may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws now or hereafter in effect relating to creditors’ rights generally, (b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), (c) public policy considerations which
may limit the rights of parties to obtain remedies, (d) waivers of any usury defense contained in the Indenture or Offered Debt Securities which may be unenforceable, (e) requirements that a claim with respect to any Offered Debt
Securities denominated in a currency, currency unit or composite currency other than United States dollars (or a judgment denominated other than in United States dollars in respect of such claim) be converted into United States dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law and (f) governmental authority to limit, delay or prohibit the making of payments outside the United States or in foreign currencies, currency units or composite currencies.
2. With respect to any series of Warrants to be offered by the Company pursuant to the Registration Statement, including any
Indeterminate Securities constituting Warrants of such series (the “Offered Warrants”), when (i) the Registration Statement, as
Stryker Corporation
January 12, 2010
Page
6
finally amended (including all necessary post-effective amendments), has become effective under the Act, (ii) an appropriate prospectus supplement or term sheet with respect to the Offered
Warrants has been prepared, delivered and filed in compliance with the Act and the applicable rules and regulations thereunder, (iii) if the Offered Warrants are to be sold pursuant to a firm commitment underwritten offering, the underwriting
agreement with respect to the Offered Warrants has been duly authorized, executed and delivered by the Company and the other parties thereto, (iv) the Board of Directors, including any appropriate committee appointed thereby, and appropriate
officers of the Company have taken all necessary corporate action to approve the issuance and terms of the Offered Warrants, the Warrant Agreement and related matters, (v) a Warrant Agreement relating to the Offered Warrants has been duly
authorized, executed and delivered by each party thereto, (vi) the terms of the Offered Warrants and of their issuance and sale have been duly established in conformity with the applicable Warrant Agreement so as not to violate any applicable
law, the Articles or the Bylaws or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over
the Company and the applicable Warrant Agent, (vii) the securities relating to such Offered Warrants have been duly authorized for issuance by such issuer, (viii) the Debt Securities, if any, relating to such Offered Warrants have been
duly executed and authenticated in accordance with the provisions of the applicable Indenture and any supplemental indenture thereto and duly delivered to the purchasers thereof upon exercise of the Offered Warrants and payment of the agreed upon
consideration therefor, and (ix) the Offered Warrants have been duly executed, delivered, countersigned, issued and sold in accordance with the provisions of the applicable Warrant Agreement to be filed on a Current Report on Form 8-K or other
applicable periodic report in the manner contemplated in the Registration Statement or any prospectus supplement or term sheet relating thereto, the Offered Warrants, when issued and sold in accordance with the applicable Warrant Agreement and the
applicable underwriting agreement, if any, or any other duly authorized, executed and delivered valid and binding purchase or agency agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with
their respective terms, except to the extent that enforcement thereof may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors’
rights generally, (b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) and (c) public policy considerations which may limit the rights of parties to obtain remedies.
Stryker Corporation
January 12, 2010
Page
7
3. With respect to any Subscription Rights to be offered by the Company pursuant to the
Registration Statement, including any Indeterminate Securities constituting Subscription Rights (the “Offered Subscription Rights”), when (i) the Registration Statement, as finally amended (including all necessary post-effective
amendments), has become effective under the Act, (ii) an appropriate prospectus supplement or term sheet with respect to the Offered Subscription Rights has been prepared, delivered and filed in compliance with the Act and the applicable rules
and regulations thereunder, (iii) if the Offered Subscription Rights are to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the Offered Subscription Rights has been duly authorized,
executed and delivered by the Company and the other parties thereto, (iv) the Board of Directors, including any appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action to
approve the issuance and terms of the Offered Subscription Rights, the Subscription Rights Agreement and related matters, including setting forth the terms of the Subscription Rights in a Subscription Rights Certificate, (v) a Subscription
Rights Agreement relating to the Offered Subscription Rights has been duly authorized, executed and delivered by each party thereto, (vi) the terms of the Offered Subscription Rights and of their issuance and sale have been duly established in
conformity with the applicable Subscription Rights Agreement and Subscription Rights Certificate so as not to violate any applicable law, the Articles or the Bylaws or result in a default under or breach of any agreement or instrument binding upon
the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company and the applicable Subscription Agent, (vii) the securities relating to such Offered Subscription
Rights have been duly authorized for issuance by the Company, and (viii) the Offered Subscription Rights have been duly executed, delivered, countersigned, issued and sold in accordance with the provisions of the applicable Subscription Rights
Agreement and Subscription Rights Certificate to be filed on a Current Report on Form 8-K or other applicable periodic report in the manner contemplated in the Registration Statement or any prospectus supplement or term sheet relating thereto, the
Offered Subscription Rights, when issued and sold in accordance with the applicable Subscription Rights Agreement and Subscription Rights Certificate and the applicable underwriting agreement, if any, or any other duly authorized, executed and
delivered valid and binding purchase or agency agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except to the extent that enforcement thereof may be limited
by (a) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally, (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity) and (c) public policy considerations which may limit the rights of parties to obtain remedies.
Stryker Corporation
January 12, 2010
Page
8
4. With respect to any Stock Purchase Contracts to be offered by the Company pursuant to
the Registration Statement, including any Indeterminate Securities constituting Stock Purchase Contracts (the “Offered Stock Purchase Contracts”), when (i) the Registration Statement, as finally amended (including all necessary
post-effective amendments), has become effective under the Act, (ii) an appropriate prospectus supplement or term sheet with respect to the Offered Stock Purchase Contracts has been prepared, delivered and filed in compliance with the Act and
the applicable rules and regulations thereunder, (iii) if the Offered Stock Purchase Contracts are to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the Offered Stock Purchase Contracts
has been duly authorized, executed and delivered by the Company and the other parties thereto, (iv) the Board of Directors, including any appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary
corporate action to approve the issuance and terms of the Offered Stock Purchase Contracts and related matters, (v) a Stock Purchase Contract Agreement relating to the Offered Stock Purchase Contracts has been duly authorized, executed and
delivered by each party thereto, (vi) the terms of the Offered Stock Purchase Contracts and of their issuance and sale have been duly established in conformity with the applicable Stock Purchase Contract Agreement so as not to violate any
applicable law, the Articles or the Bylaws or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company and the applicable Stock Purchase Contract Agent, (vii) the securities relating to such Offered Stock Purchase Contracts have been duly authorized for issuance by such issuer and (viii) the applicable Offered
Stock Purchase Contracts have been duly executed, delivered, countersigned, issued and sold in accordance with the provisions of the applicable Stock Purchase Contract Agreement to be filed on a Current Report on Form 8-K or other applicable
periodic report in the manner contemplated in the Registration Statement or any prospectus supplement or term sheet relating thereto, the Offered Stock Purchase Contracts, when issued and sold in accordance with the applicable Stock Purchase
Contract Agreement and the applicable underwriting agreement, if any, or any other duly authorized, executed and delivered valid and binding purchase or agency agreement, will be valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, except to the extent that enforcement thereof may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect
relating to creditors’ rights generally, (b) general principles of equity (regardless of whether enforceability is considered in a
Stryker Corporation
January 12, 2010
Page
9
proceeding at law or in equity) and (c) public policy considerations which may limit the rights of parties to obtain remedies.
5. With respect to any Stock Purchase Units to be offered by the Company pursuant to the Registration Statement, including any Indeterminate
Securities constituting Stock Purchase Units (the “Offered Stock Purchase Units”), when (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective under the Act,
(ii) an appropriate prospectus supplement or term sheet with respect to the Offered Stock Purchase Units has been prepared, delivered and filed in compliance with the Act and the applicable rules and regulations thereunder, (iii) if the
Offered Stock Purchase Units are to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the Offered Stock Purchase Units has been duly authorized, executed and delivered by the Company and the
other parties thereto, (iv) the Board of Directors, including any appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action to approve the issuance and terms of the Offered Stock
Purchase Units and related matters, (v) the terms of the Offered Stock Purchase Units and the related Offered Stock Purchase Contracts and of their issuance and sale have been duly established in conformity with the applicable Stock Purchase
Contract Agreement so as not to violate any applicable law, the Articles or the Bylaws or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company and the applicable Stock Purchase Contract Agent, (vi) any Stock Purchase Contracts and Debt Securities or debt obligations of third parties, including U.S. Treasury
securities, or other securities (or any combination of the foregoing) included in such Offered Stock Purchase Units have been duly issued and paid for in the manner contemplated in the Registration Statement and any prospectus supplement or term
sheet relating thereto, (vii) the securities relating to such Offered Stock Purchase Units have been duly authorized for issuance by such issuer and have been duly issued and paid for in the manner contemplated in the Registration Statement or
any prospectus supplement or term sheet relating thereto and (viii) the applicable Offered Stock Purchase Units have been duly executed, delivered, countersigned, issued and sold in accordance with the provisions of the applicable Stock
Purchase Contract Agreement to be filed on a Current Report on Form 8-K or other applicable periodic report in the manner contemplated in the Registration Statement or any prospectus supplement or term sheet relating thereto, the Offered Stock
Purchase Units, when issued and sold in accordance with the applicable Stock Purchase Contract Agreement and the applicable underwriting agreement, if any, or any other duly authorized, executed and delivered valid and binding purchase or agency
agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except to the extent that enforcement thereof may be
Stryker Corporation
January 12, 2010
Page
10
limited by (a) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally,
(b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) and (c) public policy considerations which may limit the rights of parties to obtain remedies.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. We also hereby consent to
the reference to our firm under the heading “Legal Matters” in the prospectus which forms a part of the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any
subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
Exhibit 12.1
Ratio of Earnings to Fixed Charges
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
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|
Nine Months ended
September 30, 2009
|
|
2008
|
|
2007
|
|
2006
|
|
2005
|
|
2004
|
|
Earnings from continuing operations before income taxes
|
|
$
|
1,100.8
|
|
$
|
1,580.2
|
|
$
|
1,370.1
|
|
$
|
1,093.8
|
|
$
|
937.0
|
|
$
|
675.0
|
|
Plus fixed charges:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense (1)
|
|
|
17.6
|
|
|
31.0
|
|
|
23.1
|
|
|
11.2
|
|
|
10.8
|
|
|
9.6
|
|
Rent interest factor (2)
|
|
|
18.7
|
|
|
25.3
|
|
|
22.0
|
|
|
18.7
|
|
|
16.4
|
|
|
15.9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total fixed charges:
|
|
|
36.3
|
|
|
56.3
|
|
|
45.1
|
|
|
29.9
|
|
|
27.2
|
|
|
25.6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings from continuing operations before income taxes and fixed charges
|
|
$
|
1,137.1
|
|
$
|
1,636.5
|
|
$
|
1,415.2
|
|
$
|
1,123.7
|
|
$
|
964.2
|
|
$
|
700.6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio of earnings to fixed charges
|
|
|
31.3
|
|
|
29.1
|
|
|
31.4
|
|
|
37.6
|
|
|
35.4
|
|
|
27.4
|
|
(1) Interest consist of interest on indebtedness, Account receivable securitization program expense, amortization of fees and debt prepayment fees
|
|
Interest Expense (per F/S)
|
|
|
17.4
|
|
|
30.5
|
|
|
22.5
|
|
|
9.5
|
|
|
7.7
|
|
|
6.8
|
|
Plus: Amortization of Fees
|
|
|
0.2
|
|
|
0.2
|
|
|
0.3
|
|
|
0.3
|
|
|
0.7
|
|
|
0.6
|
|
write-off fees due to prepayment of debt
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|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
0.6
|
|
|
—
|
|
A/R Securitization Program Expense
|
|
|
0.1
|
|
|
0.3
|
|
|
0.3
|
|
|
0.3
|
|
|
0.7
|
|
|
1.3
|
|
Interest Capitalized
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1.1
|
|
|
1.1
|
|
|
0.9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
17.6
|
|
|
31.0
|
|
|
23.1
|
|
|
11.2
|
|
|
10.8
|
|
|
9.6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2) Approximately one-third of rental expense is deemed representative of the interest factor
|
|
Total rental expense
|
|
|
56.1
|
|
|
76.0
|
|
|
65.9
|
|
|
56.0
|
|
|
49.3
|
|
|
47.8
|
|
Interest factor (one-third of rental expense)
|
|
|
18.7
|
|
|
25.3
|
|
|
22.0
|
|
|
18.7
|
|
|
16.4
|
|
|
15.9
|
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent
to the reference to our firm under the caption “Experts” in this Registration Statement (Form S-3) and related Prospectus and Prospectus Supplement of Stryker Corporation for the registration of common stock, preferred stock, debt
securities, warrants, subscription rights, stock purchase contracts and stock purchase units and to the incorporation by reference therein of our reports dated February 12, 2009, with respect to the consolidated financial statements and schedule of
Stryker Corporation, and the effectiveness of internal control over financial reporting of Stryker Corporation, included in its Annual Report (Form 10-K) for the year ended December 31, 2008, filed with the Securities and Exchange Commission.
Grand Rapids, Michigan
January 12,
2010
/s/ Ernst & Young
LLP
Exhibit 25.1
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to
Determine Eligibility of
a Trustee Pursuant to Section 305(b)(2)
U.S. BANK NATIONAL ASSOCIATION
(Exact name of
Trustee as specified in its charter)
31-0841368
I.R.S. Employer Identification No.
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|
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|
|
800 Nicollet Mall
Minneapolis, Minnesota
|
|
55402
|
|
(Address of principal executive offices)
|
|
(Zip Code)
|
Jason Fry
U.S. Bank National Association
40 Pearl Street NW,
Suite 838
Grand Rapids, MI 49503
(616) 459-3326
(Name, address and telephone number of agent for service)
Stryker Corporation
(Issuer with respect to the Securities)
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|
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Michigan
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38-1239739
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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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2825 Airview Boulevard
Kalamazoo, Michigan
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49002
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(Address of Principal Executive Offices)
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(Zip Code)
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Stryker Corporation Debt Securities
(Title of the Indenture Securities)
FORM T-1
|
Item 1.
|
GENERAL INFORMATION.
Furnish the following information as to the Trustee.
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|
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a)
|
Name and address of each examining or supervising authority to which it is subject.
|
Comptroller of the Currency
Washington, D.C.
|
|
b)
|
Whether it is authorized to exercise corporate trust powers.
|
Yes
|
Item 2.
|
AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each such affiliation.
|
None
|
Items 3-15
|
Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee
acts as Trustee.
|
|
Item 16.
|
LIST OF EXHIBITS:
List below all exhibits filed as a part of this statement of eligibility and qualification.
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|
|
1.
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A copy of the Articles of Association of the Trustee.*
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|
|
2.
|
A copy of the certificate of authority of the Trustee to commence business.*
|
|
|
3.
|
A copy of the certificate of authority of the Trustee to exercise corporate trust powers.*
|
|
|
4.
|
A copy of the existing bylaws of the Trustee.**
|
|
|
5.
|
A copy of each Indenture referred to in Item 4. Not applicable.
|
|
|
6.
|
The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6.
|
|
|
7.
|
Report of Condition of the Trustee as of September 30, 2009 published pursuant to law or the requirements of its supervising or examining authority, attached as
Exhibit 7.
|
|
*
|
Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005.
|
|
**
|
Incorporated by reference to Exhibit 25.1 to registration statement on S-4, Registration Number 333-159463 filed on August 21, 2009.
|
2
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL
ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Grand Rapids, State of Michigan on the 12
th
of January, 2010.
|
|
|
|
|
|
|
|
By:
|
|
/s/ Jason Fry
|
|
|
|
Jason Fry
|
|
|
|
Vice President
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Susan T. Brown
|
|
|
|
Susan T. Brown
|
|
|
|
Vice President
|
3
Exhibit 6
CONSENT
In accordance with Section 321(b) of
the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Dated: January 12, 2010
|
|
|
|
|
|
|
|
By:
|
|
/s/ Jason Fry
|
|
|
|
Jason Fry
|
|
|
|
Vice President
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Susan T. Brown
|
|
|
|
Susan T. Brown
|
|
|
|
Vice President
|
4
Exhibit 7
U.S. Bank National Association
Statement of Financial Condition
Exhibit 7
As of 9/30/2009
($000’s)
|
|
|
|
|
|
|
|
9/30/2009
|
|
Assets
|
|
|
|
|
Cash and Balances Due From Depository Institutions
|
|
$
|
5,280,939
|
|
Securities
|
|
|
40,563,378
|
|
Federal Funds
|
|
|
3,740,525
|
|
Loans & Lease Financing Receivables
|
|
|
179,125,128
|
|
Fixed Assets
|
|
|
4,619,442
|
|
Intangible Assets
|
|
|
12,762,329
|
|
Other Assets
|
|
|
13,851,241
|
|
|
|
|
|
|
Total Assets
|
|
$
|
259,942,982
|
|
|
|
|
Liabilities
|
|
|
|
|
Deposits
|
|
$
|
180,624,239
|
|
Fed Funds
|
|
|
10,951,345
|
|
Treasury Demand Notes
|
|
|
0
|
|
Trading Liabilities
|
|
|
469,006
|
|
Other Borrowed Money
|
|
|
28,305,774
|
|
Acceptances
|
|
|
0
|
|
Subordinated Notes and Debentures
|
|
|
7,779,967
|
|
Other Liabilities
|
|
|
6,311,437
|
|
|
|
|
|
|
Total Liabilities
|
|
$
|
234,441,768
|
|
|
|
|
Equity
|
|
|
|
|
Minority Interest in Subsidiaries
|
|
$
|
1,640,987
|
|
Common and Preferred Stock
|
|
|
18,200
|
|
Surplus
|
|
|
12,642,020
|
|
Undivided Profits
|
|
|
11,200,007
|
|
|
|
|
|
|
Total Equity Capital
|
|
$
|
25,501,214
|
|
|
|
|
Total Liabilities and Equity Capital
|
|
$
|
259,942,982
|
To the best of the undersigned’s determination, as of the date hereof, the above financial information is true and correct.
|
|
|
|
|
U.S. Bank National Association
|
|
|
|
|
By:
|
|
/s/ Jason Fry
|
|
|
|
Vice President
|
|
|
|
|
Date:
|
|
January 12, 2010
|
5