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AS FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION
ON DECEMBER 5, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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IDEX CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 36-3555336
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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630 DUNDEE ROAD, NORTHBROOK, ILLINOIS 60062
(847) 498-7070
(Address, including zip code, and telephone number,
including area code, of Registrant's
principal executive offices)
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Wayne P. Sayatovic
Senior Vice President-Finance, Chief Financial
Officer and Secretary
IDEX Corporation
630 Dundee Road
Northbrook, Illinois 60062
(847) 498-7070
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all communications to:
Mark A. Stegemoeller
Latham & Watkins
Sears Tower, Suite 5800
Chicago, Illinois 60606
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: FROM TIME
TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT AS
DETERMINED BY MARKET CONDITIONS.
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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]
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If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [_]
If the delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER UNIT (1) OFFERING PRICE(1)(2) FEE
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Debt Securities (4)(7).......................... (3) (3) (3) (3)
Preferred Stock, par value $.01 per share
(5)(7).......................................... (3) (3) (3) (3)
Common Stock, par value $.01 per share (6)(7)... (3) (3) (3) (3)
Warrants (8).................................... (3) (3) (3) (3)
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Total:..........................................$250,000,000(9) 100% $250,000,000(7) $75,757.58
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(footnotes on next page)
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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(footnotes from previous page)
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(1) The proposed maximum per unit and aggregate offering prices per
class of security will be determined from time to time by the Registrant in
connection with the issuance by the Registrant of the securities registered
hereunder.
(2) Estimated solely for purposes of determining the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933, as amended (the
"Securities Act").
(3) Not required to be included in accordance with General Instruction
II.D. of Form S-3 under the Securities Act.
(4) Subject to note (9) below, the Registrant is registering hereunder
an indeterminate principal amount of Debt Securities as may be sold, from time
to time, by the Registrant. If any Debt Securities are issued at an original
issue discount, then the offering price shall be in such greater principal
amount as shall result in an aggregate initial offering price not to exceed
$250,000,000 less the dollar amount of any securities previously issued
hereunder.
(5) Subject to note (9) below, the Registrant is registering hereunder
an indeterminate number of shares of Preferred Stock of the Company as may be
sold from time to time.
(6) Subject to note (9) below, the Registrant is registering hereunder
an indeterminate number of shares of Common Stock of the Company as may be sold
from time to time.
(7) Subject to note (9) below, the Registrant is registering hereunder
an indeterminate principal amount of Debt Securities, and an indeterminate
number of shares of Preferred Stock and Common Stock of the Company, as shall be
issuable upon conversion or redemption, or upon the exercise of Warrants of the
Company registered hereunder, of Debt Securities, Preferred Stock or Common
Stock of the Company, as the case may be, registered hereunder.
(8) Subject to note (9) below, the Registrant is registering hereunder
an indeterminate amount and number of Warrants of the Company, representing
rights to purchase certain of the Debt Securities, Preferred Stock or Common
Stock of the Company registered hereunder.
(9) In no event will the aggregate initial offering price of all
securities issued from time to time pursuant to this Registration Statement
exceed $250,000,000 or the equivalent thereof in one or more foreign currencies,
foreign currency units, or composite currencies. The aggregate amount of Common
Stock registered hereunder is further limited to that which is permissible under
Rule 415(a)(4) under the Securities Act. The securities registered hereunder may
be sold separately or as units with other securities registered hereunder.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
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Subject to Completion, Dated December 5, 1997
IDEX CORPORATION
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
SECURITIES WARRANTS
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IDEX Corporation (the "Company" or "IDEX") may offer from time to time,
in one or more series, (i) unsecured debt securities (the "Debt Securities"),
(ii) warrants to purchase Debt Securities (the "Debt Warrants"), (iii) shares
of serial preferred stock, par value $.01 per share, in one or more series
(the "Preferred Stock"), (iv) warrants to purchase share of Preferred Stock
(the "Preferred Stock Warrants"), (v) shares of common stock, $.01 par value
per share (the "Common Stock"), or (vi) warrants to purchase shares of Common
Stock (the "Common Stock Warrants"), in amounts, at prices, and on terms to be
determined by market conditions at the time of offering. The Debt Warrants,
Preferred Stock Warrants and Common Stock Warrants are referred to herein
collectively as the "Securities Warrants." The Debt Securities, Preferred
Stock, Common Stock and Securities Warrants are referred to herein collectively
as the "Offered Securities."
The specific terms of the Offered Securities with respect to which this
Prospectus is being delivered will be set forth in a supplement to this
Prospectus (a "Prospectus Supplement"), together with the terms of the offering
and sale of the Offered Securities, the initial offering price and the net
proceeds to the Company from the sale thereof. The Prospectus Supplement will
include, with regard to the particular Offered Securities, the following
information: (i) in the case of Debt Securities, the specific designation,
aggregate principal amount, ranking, subordination provisions, authorized
denomination, maturity, rate or method of calculation of interest and dates for
payment thereof, any terms for optional or mandatory redemption or payment of
additional amounts or any sinking fund provisions, any index or formula for
determining the amount of any principal, premium, or interest fund provisions,
the currency or currency unit in which principal, premium, or interest is
payable, whether the securities are issuable in registered form or in the form
of global securities and any provisions for the conversion or exchange of such
Debt Securities; (ii) in the case of Preferred Stock, the designation, number of
shares, liquidation preference per share, initial public offering price,
dividend rate (or method of calculation thereof), dates on which dividends shall
be payable and dates from which dividends shall accrue, any redemption or
sinking fund provisions and any conversion or exchange provisions; (iii) in the
case of Common Stock, the number of shares; (iv) in the case of Securities
Warrants, the duration, offering price, exercise price and detachability; and
(v) in the case of all Offered Securities, whether such Offered Securities will
be offered separately or as a unit with other Offered Securities. The Prospectus
Supplement also will contain information, where applicable, about material
United States federal income tax considerations relating to, and any listing on
a securities exchange of, the Offered Securities covered by such Prospectus
Supplement.
The Company's Common Stock is listed on the New York Stock Exchange and
the Chicago Stock Exchange. Any Common Stock offered hereby will be listed,
subject to notice of issuance, on such exchanges.
The Debt Securities of any series may be issued with Securities
Warrants. The Debt Securities may be designated as senior debt or subordinated
debt of the Company. Any Debt Securities designated
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as senior debt, when issued, will rank on a parity with all the unsecured and
unsubordinated indebtedness of the Company, and any Debt Securities designated
as subordinated debt, when issued, will be subordinated in right of payment to
obligations of the Company to its other creditors to the extent set forth in the
applicable Prospectus Supplement. See "Description of Debt Securities."
The Offered Securities may be sold directly by the Company, through
agents designated from time to time or to or through underwriters or dealers.
See "Plan of Distribution." If any agents of the Company, underwriters or
dealers are involved in the sale of any Offered Securities in respect of which
this Prospectus is being delivered, the names of such agents, underwriters or
dealers and any applicable commissions or discounts and the net proceeds to the
Company will be set forth in a Prospectus Supplement.
(CONTINUED ON NEXT PAGE)
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is _____, 199_.
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(CONTINUED FROM COVER PAGE)
The Offered Securities may be issued in one or more series or issuances
and will be limited to $250,000,000 in aggregate public offering price (or its
equivalent, based on the applicable exchange rate, to the extent Debt Securities
are issued for one or more foreign currencies or currency units). The Offered
Securities may be sold for United States dollars, or any foreign currency or
currencies or currency units, and the principal of, any premium on, and any
interest on, the Debt Securities may be payable in United States dollars, or any
foreign currency or currencies or currency units.
The Offered Securities may be offered separately or as units with other
Offered Securities, in separate series in amounts, at prices and on terms to be
determined at or prior to the time of sale. The sale of other securities under
the Registration Statement of which this Prospectus forms a part, or under a
Registration Statement to which this Prospectus relates, will reduce the amount
of Offered Securities which may be sold hereunder.
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files periodic reports and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy statements and other
information concerning the Company may be inspected and copies may be obtained
(at prescribed rates) at the Commission's Public Reference Section, 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549, at the web site
(http://www.sec.gov) maintained by the Commission and at the Commission's
Regional Offices located at Seven World Trade Center, 13th Floor, New York, New
York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. The Company's Common Stock is listed on the New York and Chicago
Stock Exchanges, where reports, proxy statements and other information
concerning the Company can also be inspected. The offices of the New York Stock
Exchange are located at 20 Broad Street, New York, New York 10005, and the
offices of the Chicago Stock Exchange are located at One Financial Place, 440
South LaSalle Street, Chicago, Illinois 60605.
The Company has filed a registration statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with the Commission with respect to the Offered Securities.
As permitted by the rules and regulations of the Commission, this Prospectus
omits certain information contained in the Registration Statement. For further
information with respect to the Company and the Offered Securities, reference is
hereby made to such Registration Statement, including the exhibits filed as a
part thereof. Statements contained in this Prospectus concerning the provisions
of certain documents filed with, or incorporated by reference in, the
Registration Statement are not necessarily complete, each such statement being
qualified in all respects by such reference. Copies of all or any part of the
Registration Statement, including the documents incorporated by reference
therein or exhibits thereto, may be obtained upon payment of the prescribed
rates at the offices of the Commission set forth above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company
pursuant to the Exchange Act are incorporated herein by reference:
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(1) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996;
(2) the Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1997, June 30, 1997 and September 30, 1997; and
(3) all other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and before the termination of the offering of all Offered Securities
to which this Prospectus relates, which shall be deemed to be a part hereof from
the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is incorporated or deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
This Prospectus may not be used to consummate sales of offered
securities unless accompanied by a Prospectus Supplement. The delivery of this
Prospectus together with a Prospectus Supplement relating to particular Offered
Securities in any jurisdiction shall not constitute an offer in such
jurisdiction of any other securities covered by this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a Prospectus is delivered, on written or oral request
of such person, a copy of any or all of the documents incorporated by reference
herein (other than exhibits to such documents unless such exhibits are
incorporated by reference into such documents). Such written requests should be
addressed to: Secretary, IDEX Corporation, 630 Dundee Road, Northbrook, Illinois
60062. Telephone requests may be directed to the Secretary at (847) 498-7070.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus, including the documents that are incorporated by
reference as set forth in "Information Incorporated by Reference," contains
forward-looking statements within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act. Such statements relate to, among other
things, capital expenditures, cost reduction, cash flow and operating
improvements and are indicated by words or phrases such as "anticipate,"
"estimate," "plans," "projects," "management believes," "the Company believes,"
"the Company intends" and similar words or phrases. Such statements are subject
to inherent uncertainties and risks, including but not limited to the following:
IDEX's utilization of its capacity and the effect of capacity utilization on
costs; developments with respect to contingencies such as environmental matters
and litigation; labor market conditions and raw materials costs; levels of
industrial activity and economic conditions in the U.S. and other countries
around the world; pricing pressures and other competitive factors and levels of
capital spending in certain industries, all of which could have a material
impact on order rates; the relationship of the U.S. dollar to other currencies;
interest rates; IDEX's ability to integrate and operate acquired businesses on a
profitable basis, and other components of IDEX's business. Consequently, actual
events and results may vary significantly from those included in or contemplated
or implied by such statements.
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THE COMPANY
IDEX designs, manufactures and markets a broad range of fluid handling
products and industrial products serving a diverse customer base in the United
States and internationally. IDEX competes with relatively few major
manufacturers in most of its markets, and believes that each of its eleven
principal subsidiaries (the "Subsidiaries") has a significant domestic market
share in its respective product area. The Company manufactures proprietary
products, designed and engineered by the Company itself.
The Fluid Handling Group of Subsidiaries, which in 1996 accounted for
approximately three-fourths of the Company's total sales, manufactures a wide
variety of industrial pumps and controls, fire-fighting pumps and rescue tools,
dispensing and mixing equipment, lubrication systems and low-horsepower
compressors. Eight of the Company's Subsidiaries operate in the Fluid Handling
Group, and a significant percentage of sales in this Group was to customers
outside of the United States. The devices and equipment produced by these
Subsidiaries are used in a large and diverse set of industries, including paints
and coatings, chemical processing, construction and material handling equipment,
food processing, transportation equipment, water conditioning, petroleum
distribution, oil and refining, utilities and power generation.
The Industrial Products Group of Subsidiaries manufactures sheet metal
fabricating equipment and tooling, stainless steel banding and clamping devices,
vibration control devices and sign-mounting products and systems. Three of the
Company's Subsidiaries operate in the Industrial Products Group, and a
significant percentage of sales in this Group was to customers outside of the
United States. The products and devices manufactured by these Subsidiaries are
used in a variety of industries and applications, including sign mounting
systems used for road, traffic and general signage, transportation equipment,
utilities, petroleum distribution, electronics and office equipment.
The address of the principal executive office of the Company is 630
Dundee Road, Northbrook, Illinois 60062. The telephone number of the Company is
(847) 498-7070.
RECENT DEVELOPMENT
On December 4, 1997, the Company announced that it had entered into an
agreement to acquire Knight Equipment International, Inc. ("Knight"), a
privately-held company with annual revenues of approximately $25 million. The
transaction, which is scheduled to close in mid-December 1997, will involve the
purchase by the Company of Knight for an aggregte purchase price of
approximately $38 million in cash. Knight manufactures pumps and dispensing
equipment for industrial laundries, commercial dishwashing and chemical
metering customers, and is expected to become part of the Company's Fluid
Handling Group.
USE OF PROCEEDS
Unless otherwise provided in the applicable Prospectus Supplement, the
Company anticipates that any net proceeds will be used for general corporate
purposes, which may include but are not limited to working capital, capital
expenditures, acquisitions and the repayment or refinancing of indebtedness of
the Company.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratio of
earnings (before fixed charges) to fixed charges for each of the (i) years
ended December 31, 1996, 1995, 1994, 1993 and 1992, and (ii) nine months ended
September 30, 1997 and 1996:
YEAR ENDED NINE MONTHS ENDED
DECEMBER 31, SEPTEMBER 30,
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1996 1995 1994 1993 1992 1997 1996
Ratio of earnings (before
fixed charges)to fixed charges: 5.16x 5.45x 4.87x 4.48x 3.54x 5.71x 5.24x
For purposes of computing the ratio of earnings (before fixed charges)
to fixed charges, (i) earnings consist of income before income taxes,
extraordinary items and fixed charges, and (ii) fixed charges consist of
interest on indebtedness, amortization of debt issuance expenses and rental
expense representative of the interest factor.
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DESCRIPTION OF DEBT SECURITIES
The Debt Securities offered hereby are to be issued under an indenture
(the "Indenture") to be executed by the Company and a trustee, as Trustee (the
"Trustee"). A copy of the form of Indenture has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part. Section references
used in this Prospectus refer to sections of the Indenture.
The following statements relating to the Debt Securities and the
Indenture are summaries and do not purport to be complete, and are subject to
and are qualified in their entirety by reference to all the provisions of the
Indenture. Certain other specific terms of any series of Debt Securities will be
described in the applicable Prospectus Supplement. To the extent that any
particular terms of the Debt Securities described in a Prospectus Supplement
differ from any of the terms described herein, then such terms described herein
shall be deemed to have been superseded by such Prospectus Supplement. As used
in this "Description of Debt Securities," all references to the "Company" shall
mean IDEX Corporation excluding, unless the context otherwise requires or as
otherwise expressly stated, its Subsidiaries.
GENERAL
The terms of each series of Debt Securities will be established by or
pursuant to a resolution of the Board of Directors of the Company and set forth
or determined in the manner provided in an officer's certificate or by a
supplemental indenture. (Indenture ss. 2.2) The particular terms of each series
of Debt Securities will be described in a Prospectus Supplement relating to such
series (including any pricing supplement thereto).
The Debt Securities that may be offered under the Indenture are not
limited in aggregate principal amount. The Debt Securities may be issued in one
or more series with the same or various maturities, at par, at a premium, or at
a discount. The applicable Prospectus Supplement (including any pricing
supplement thereto) will set forth the initial offering price, the aggregate
principal amount and the following terms of the Debt Securities in respect of
which this Prospectus is delivered: (1) the title of such Debt Securities; (2)
any subordination provisions pertaining to such Debt Securities; (3) the price
or prices (expressed as a percentage of the principal amount thereof) at which
the Debt Securities will be issued; (4) any limit on the aggregate principal
amount of such Debt Securities; (5) the date or dates on which principal on such
Debt Securities will be payable; (6) the rate or rates (which may be fixed or
variable) per annum or, if applicable, the method used to determine such rate or
rates (including any commodity, commodity index, stock exchange index or
financial index) at which such Debt Securities will bear interest, if any, the
date or dates from which such interest, if any, will accrue, the date or dates
on which such interest, if any, will commence and be payable and any regular
record date for the interest payable on any interest payment date; (7) the place
or places where principal of, premium, if any, and interest, if any, on such
Debt Securities will be payable; (8) the period or periods within which, the
price or prices at which and the terms and conditions upon which the Debt
Securities may be redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or purchase the Debt
Securities pursuant to any sinking fund or analogous provisions or at the option
of a Holder thereof; (10) the dates, if any, on which and the price or prices at
which the Debt Securities will be repurchased by the Company at the option of
the Holders thereof and other detailed terms and provisions of such repurchase
obligations; (11) the denominations in which such Debt Securities may be
issuable, if other than denominations of $1,000 and any integral multiple
thereof;
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(12) whether the Debt Securities are to be issuable in the form of Certificated
Debt Securities (as defined below) or Global Debt Securities (as defined below);
(13) the portion of principal amount of such Debt Securities that shall be
payable upon declaration of acceleration of the maturity date thereof, if other
than the principal amount thereof; (14) the currency of denomination of such
Debt Securities; (15) the designation of the currency, currencies or currency
units in which payment of principal of, premium, if any, and interest, if any,
on such Debt Securities will be made; (16) if payments of principal of, premium,
if any, or interest, if any, on the Debt Securities are to be made in one or
more currencies or currency units other than that or those in which such Debt
Securities are denominated, the manner in which the exchange rate with respect
to such payments will be determined; (17) the manner in which the amounts of
payment of principal of, premium, if any, or interest, if any, on such Debt
Securities will be determined, if such amounts may be determined by reference to
an index based on a currency or currencies other than that in which the Debt
Securities are denominated or designated to be payable or by reference to a
commodity, commodity index, stock exchange index or financial index; (18) the
provisions, if any, relating to any security provided for such Debt Securities;
(19) any addition to or change in the Events of Default described herein or in
the Indenture with respect to such Debt Securities and any change in the
acceleration provisions described herein or in the Indenture with respect to
such Debt Securities; (20) any addition to or change in the covenants described
in the Indenture with respect to such Debt Securities; (21) any other terms of
such Debt Securities, which may modify or delete any provision of the Indenture
insofar as it applies to such series; and (22) any depositories, interest rate
calculation agents, exchange rate calculation agents or other agents with
respect to the Debt Securities. (Indenture ss. 2.2).
Debt Securities may be issued that provide for an amount less than the
stated principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to the terms of the Indenture
("Discount Securities"). Federal income tax considerations and other special
considerations applicable to any such Discount Securities will be described in
the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is denominated in a
foreign currency or currencies or a foreign currency unit or units, or if the
principal of and any premium and interest, if any, on any series of Debt
Securities is payable in a foreign currency or currencies or a foreign currency
unit or units, the restrictions, elections, general tax considerations, specific
terms and other information with respect to such issue of Debt Securities and
such foreign currency or currencies or foreign currency unit or units will be
set forth in the applicable Prospectus Supplement.
TRANSFER AND EXCHANGE
Each Debt Security will be represented by either one or more global
securities (a "Global Debt Security") registered in the name of The Depository
Trust Company, as Depository (the "Depository") or a nominee of the Depository
(each such Debt Security represented by a Global Debt Security being herein
referred to as a "Book-Entry Debt Security"), or a certificate issued in
definitive registered form (a "Certificated Debt Security"), as set forth in the
applicable Prospectus Supplement. Except as set forth under "--Global Debt
Securities and Book-Entry System" below, Book-Entry Debt Securities will not be
issuable in certificated form. The information in this section concerning the
Depository and its book-entry system and procedures has been obtained from
sources the Company believes to be reliable, but the Company takes no
responsibility for the accuracy of the information in this section.
Certificated Debt Securities. Certificated Debt Securities may be
transferred or exchanged at the Trustee's office or paying agencies in
accordance with the terms of the Indenture. No service charge will
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be made for any transfer or exchange of Certificated Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The transfer of Certificated Debt Securities and the right to receive
the principal of, premium, if any, and interest, if any, on such Certificated
Debt Securities may be effected only by surrender of the certificate
representing such Certificated Debt Securities and either reissuance by the
Company or the Trustee of such certificate to the new Holder or the issuance by
the Company or the Trustee of a new certificate to the new Holder.
Global Debt Securities and Book-Entry System. Each Global Debt Security
representing Book-Entry Debt Securities will be deposited with, or on behalf of,
the Depository, and registered in the name of the Depository or a nominee of the
Depository. Except as set forth below, Book-Entry Debt Securities will not be
exchangeable for Certificated Debt Securities and will not otherwise be issuable
as Certificated Debt Securities.
The Depository is a limited purpose trust company organized under the
laws of the State of New York, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial
Code and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act. The Depository was created to hold securities for its
participating organizations ("participants") and facilitate the clearance and
settlement of securities transactions between participants through electronic
book-entry changes in accounts of its participants, thereby eliminating the need
for physical movements of certificates. Participants include securities brokers
and dealers, banks, trust companies and clearing corporations, and may include
certain other organizations. Indirect access to the Depository's system is also
available to others such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a participant, either
directly or indirectly. The procedures that the Depository has indicated it
intends to follow with respect to Book-Entry Debt Securities are set forth
below.
Ownership of beneficial interests in Book-Entry Debt Securities will be
limited to participants or persons that may hold interests through participants.
Upon the issuance of a Global Debt Security, the Depository will credit, on its
book-entry registration and transfer system, the participants' accounts with the
respective principal amounts of the Book-Entry Debt Securities represented by
such Global Debt Security beneficially owned by such participants. The accounts
to be credited shall be designated by participants participating in the
distribution of such Book-Entry Debt Securities. Ownership of Book-Entry Debt
Securities will be shown on, and the transfer of such ownership interests will
be effected only through, records maintained by the Depository for the related
Global Debt Security (with respect to interests of participants) and on the
records of participants (with respect to interests of persons holding through
participants). The laws of some states may require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
laws may impair the ability to own, transfer or pledge beneficial interests in
Book-Entry Debt Securities.
So long as the Depository for a Global Debt Security, or its nominee,
is the registered owner of such Global Debt Security, the Depository or such
nominee, as the case may be, will be considered the sole owner or Holder of the
Book-Entry Debt Securities represented by such Global Debt Security for all
purposes under the Indenture. Except as set forth below, beneficial owners of
Book-Entry Debt Securities will not be entitled to have such securities
registered in their names, will not receive or be entitled to receive physical
delivery of a certificate in definitive form representing such securities and
will not be considered the owners or Holders thereof under the Indenture.
Accordingly, each person
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beneficially owning Book-Entry Debt Securities must rely on the procedures of
the Depository for the related Global Debt Security and, if such person is not a
participant, on the procedures of the participant through which such person owns
its interest, to exercise any rights of a Holder under the Indenture.
The Company understands, however, that under existing industry
practice, the Depository will authorize the persons on whose behalf it holds a
Global Debt Security to exercise certain rights of Holders of Debt Securities,
and the Indenture provides that the Company, the Trustee and their respective
agents will treat as the Holder of a Debt Security the persons specified in a
written statement of the Depository with respect to such Global Debt Security
for purposes of obtaining any consents or directions required to be given by
Holders of the Debt Securities pursuant to the Indenture. (Indenture ss. 2.14.6)
Payments of principal of, premium, if any, and interest on Book-Entry
Debt Securities will be made to the Depository or its nominee, as the case may
be, as the registered Holder of the related Global Debt Security. (Indenture ss.
2.14.5) None of the Company, the Trustee or any other agent of the Company or
agent of the Trustee will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests in such Global Debt Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests; provided,
however, that the Trustee may maintain physical possession of such Global Debt
Security on behalf of the Depository or its nominee pursuant to an agreement
between the Trustee and the Depository.
If the Depository is at any time unwilling or unable to continue as
Depository or ceases to be a clearing agency registered under the Exchange Act,
and a successor Depository registered as a clearing agency under the Exchange
Act is not appointed by the Company within 90 days, the Company will issue
Certificated Debt Securities in exchange for each Global Debt Security. In
addition, the Company may at any time and in its sole discretion determine not
to have the Book-Entry Debt Securities of any series represented by one or more
Global Debt Securities and, in such event, will issue Certificated Debt
Securities in exchange for the Global Debt Securities of such series. Global
Debt Securities will also be exchangeable by the Holders for Certificated Debt
Securities if an Event of Default with respect to the Book-Entry Debt Securities
represented by such Global Debt Securities has occurred and is continuing. Any
Certificated Debt Securities issued in exchange for a Global Debt Security will
be registered in such name or names as the Depository shall instruct the
Trustee. It is expected that such instructions will be based upon directions
received by the Depository from participants with respect to ownership of
Book-Entry Debt Securities relating to such Global Debt Security.
The foregoing information in this section concerning the Depository and
the Depository's book-entry system has been obtained from sources the Company
believes to be reliable, but the Company takes no responsibility for the
accuracy thereof.
NO PROTECTION IN THE EVENT OF A CHANGE OF CONTROL
Unless otherwise set forth in the applicable Prospectus Supplement, the
Debt Securities will not contain any provisions which may afford Holders of the
Debt Securities protection in the event of a change in control of the Company or
in the event of a highly leveraged transaction (whether or not such transaction
results in a change in control of the Company) which could adversely affect
Holders of Debt Securities.
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COVENANTS
The applicable Prospectus Supplement will set forth any restrictive
covenants applicable with respect to any issue of Debt Securities.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all of its properties and assets to, any
Person (a "successor Person") unless (i) the Company is the surviving
corporation or the successor Person (if other than the Company) is a
corporation, partnership, trust or other entity organized and validly existing
under the laws of any United States domestic jurisdiction and expressly assumes
the Company's obligations on the Debt Securities and under the Indenture, (ii)
immediately after giving effect to the 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 occurred and be continuing under the Indenture and (iii)
certain other conditions are met. (Indenture Section 5.1)
EVENTS OF DEFAULT
The following will be Events of Default under the Indenture with
respect to Debt Securities of any series: (a) default in the payment of any
interest on any Debt Security of that series when it becomes due and payable,
and continuance of such default for a period of 30 days (unless the entire
amount of such payment is deposited by the Company with the Trustee or with a
paying agent prior to the expiration of such period of 30 days); (b) default in
the payment of principal of or premium, if any, on any Debt Security of that
series when due and payable; (c) default in the deposit of any sinking fund
payment, when and as due in respect of any Debt Security of that series; (d)
default in the performance or breach of any other covenant or warranty of the
Company in the Indenture (other than a covenant or warranty that has been
included in the Indenture solely for the benefit of a series of Debt Securities
other than that series), which default continues uncured for a period of 60 days
after written notice to the Company by the Trustee or to the Company and the
Trustee by the Holders of not less than a majority in principal amount of the
outstanding Debt Securities of that series as provided in the Indenture; (e)
certain events of bankruptcy, insolvency or reorganization with respect to the
Company; and (f) any other Event of Default provided with respect to Debt
Securities of that series that is described in the applicable Prospectus
Supplement. No Event of Default with respect to a particular series of Debt
Securities (except as to certain events of bankruptcy, insolvency or
reorganization with respect to the Company) necessarily constitutes an Event of
Default with respect to any other series of Debt Securities. (Indenture ss.
6.1). The occurrence of an Event of Default may constitute an event of default
under the Company's bank credit agreements in existence from time to time. In
addition, the occurrence of certain Events of Default or an acceleration under
the Indenture may constitute an event of default under certain other
indebtedness of the Company outstanding from time to time.
Unless otherwise specified in the applicable Prospectus Supplement, if
an Event of Default with respect to Debt 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 a majority in principal amount of the outstanding Debt
Securities of that series may, by a notice in writing to the Company (and to the
Trustee if given by the Holders), declare to be due and payable immediately the
principal amount (or, if the Debt Securities of that series are Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of and accrued and unpaid interest, if any, on all Debt
Securities of that series. In the case of an Event of Default resulting from
certain events of bankruptcy, insolvency or reorganization, the principal amount
(or such specified amount) of and accrued and unpaid interest, if any, on all
outstanding
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Debt Securities shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder of
outstanding Debt Securities. At any time after a declaration of acceleration
with respect to Debt Securities of any series has been made, but before a
judgment or decree for payment of the money due has been obtained by the
Trustee, the Holders of a majority in principal amount of the outstanding Debt
Securities of that series may rescind and annul such acceleration if all Events
of Default, other than the non-payment of accelerated principal and interest, if
any, with respect to Debt Securities of that series, have been cured or waived
as provided in the Indenture. (Indenture ss. 6.2) For information as to waiver
of defaults see the discussion set forth below under "--Modification and
Waiver." Reference is made to the applicable Prospectus Supplement (i) relating
to any series of Debt Securities that are Discount Securities for the particular
provisions relating to acceleration of a portion of the principal amount of such
Discount Securities upon the occurrence of an Event of Default, or (ii) relating
to any series of Debt Securities that are designated as subordinated debt for
the particular provisions relating to acceleration of a portion of the principal
amount of such subordinated Debt Securities upon the occurrence of an Event of
Default.
The Indenture provides that the Trustee will be under no obligation to
exercise any of its rights or powers under the Indenture at the request of any
Holder of outstanding Debt Securities, unless the Trustee receives indemnity
satisfactory to it against any loss, liability or expense. (Indenture ss.
7.1(e)) Subject to certain rights of the Trustee, the Holders of a majority in
principal amount of the outstanding Debt 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 Debt Securities of that series. (Indenture
Section 6.12)
No Holder of any Debt Security of any series will have any right to
institute any proceeding, judicial or otherwise, with respect to the Indenture,
or for the appointment of a receiver or trustee, or for any remedy under the
Indenture, unless such Holder shall have previously given to the Trustee written
notice of a continuing Event of Default with respect to Debt Securities of that
series and unless also the Holders of not less than a majority in principal
amount of the outstanding Debt Securities of that series shall have made written
request, and offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee, and the Trustee shall not have received from the Holders
of a majority in principal amount of the outstanding Debt Securities of that
series a direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days. (Indenture ss. 6.7) Notwithstanding
the foregoing, the Holder of any Debt Security will have an absolute and
unconditional right to receive payment of the principal of, premium, if any, and
any interest on such Debt Security on or after the due dates expressed in such
Debt Security and to institute suit for the enforcement of any such payment.
(Indenture Section 6.8)
The Indenture requires the Company, within 90 days after the end of
each of its fiscal years, to furnish to the Trustee a statement as to compliance
with the Indenture. (Indenture ss. 4.3) The Indenture provides that the Trustee
may withhold notice to the Holders of Debt Securities of any series of any
Default or Event of Default (except in payment on any Debt Securities of such
series) with respect to Debt Securities of such series if it in good faith
determines that withholding such notice is in the interest of the Holders of
such Debt Securities. (Indenture Section 7.5)
MODIFICATION AND WAIVER
The Indenture provides that modifications to, and amendments of, the
Indenture or any series of Debt Securities issued thereunder may be made by the
Company and the Trustee without the consent of the Holders for the following
purposes: (i) to cure any ambiguity, defect or inconsistency; (ii) to comply
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with Article V (which governs the Company's ability to merge or consolidate
with, and to be replaced by, a successor corporation); (iii) to provide for
uncertificated Debt Securities in addition to or in place of certificated Debt
Securities; (iv) to make any change that does not adversely affect the rights of
any Holder; (v) to provide for the issuance of and establish the form and terms
and conditions of Debt Securities of any series as permitted by the Indenture;
(vi) to evidence and provide for the acceptance of appointment under the
Indenture by a successor Trustee with respect to the Debt Securities of one or
more series and to add to or change any of the provisions of the Indenture as
shall be necessary to provide for or facilitate the administration of the trusts
under the Indenture by more than one Trustee; or (vii) to comply with
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the Trust Indenture Act of 1939, as amended. (Indenture
Section 9.1)
Other modifications to, and amendments of, the Indenture or any series
of Debt Securities issued thereunder may be made by the Company and the Trustee
with the consent of the Holders of at least a majority in principal amount of
the outstanding Debt Securities of each series affected by such modifications or
amendments; provided, however, that no such modification or amendment may,
without the consent of the Holder of each outstanding Debt Security affected
thereby: (a) change the amount of Debt Securities whose Holders must consent to
an amendment, supplement or waiver; (b) reduce the rate of or extend the time
for payment of interest (including default interest) on any Debt Security; (c)
reduce the principal of or premium, if any, on, or change the fixed maturity of,
any Debt Security or reduce the amount of, or postpone the date fixed for, the
payment of any sinking fund or analogous obligation with respect to any series
of Debt Securities; (d) reduce the principal amount of Discount Securities
payable upon acceleration of the maturity thereof; (e) waive a default in the
payment of the principal of, premium, if any, or interest, if any, on any Debt
Security (except a rescission of acceleration of the Debt Securities of any
series by the Holders of at least a majority in aggregate principal amount of
the then outstanding Debt Securities of such series and a waiver of the payment
default that resulted from such acceleration); (f) make the principal of, or
premium, if any, or interest, if any, on any Debt Security payable in currency
other than that stated in the Debt Security; (g) make any change to certain
provisions of the Indenture relating to, among other things, the right of
Holders of Debt Securities to receive payment of the principal of, premium, if
any, and interest, if any, on such Debt Securities and to institute suit for the
enforcement of any such payment and to waivers or amendments; or (h) waive a
redemption payment with respect to any Debt Security or change any of the
provisions with respect to the redemption of any Debt Security. (Indenture
Section 9.3)
The Holders of at least a majority in principal amount of the
outstanding Debt Securities of any series may on behalf of the Holders of all
Debt Securities of that series waive, insofar as that series is concerned,
compliance by the Company with provisions of the Indenture other than certain
specified provisions. (Indenture ss. 9.2) The Holders of not less than a
majority in principal amount of the outstanding Debt Securities of any series
may on behalf of the Holders of all the Debt Securities of such series waive any
past default under the Indenture with respect to such series and its
consequences, except a default in the payment of the principal of, premium, if
any, or interest, if any, on any Debt Security of that series or in respect of a
covenant or provision which cannot be modified or amended without the consent of
the Holder of each outstanding Debt Security of such series affected (provided,
however, that the Holders of a majority in principal amount of the outstanding
Debt Securities of any series may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration).
(Indenture Section 6.13)
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DEFEASANCE OF DEBT SECURITIES AND CERTAIN COVENANTS IN CERTAIN CIRCUMSTANCES
Satisfaction and Discharge of Indenture. The Indenture provides that,
upon satisfaction by the Company of certain conditions, the terms of the
Indenture will cease to be of further effect (except for certain obligations to
register the transfer or exchange of Debt Securities, to replace stolen, lost or
mutilated Debt Securities, to maintain paying agencies, to compensate and
indemnify the Trustee and certain provisions relating to the treatment of funds
held by paying agents) in the event that either (i) all Debt Securities
theretofore authenticated and delivered under the Indenture (other than Debt
Securities that have been destroyed, lost or stolen and that have been replaced
or paid) have been delivered to the Trustee for cancellation; or (ii) all Debt
Securities issued under the Indenture not theretofore delivered to the Trustee
for cancellation (a) have become due and payable, or (b) will become due and
payable at their stated maturity within one year, or (c) are to be called for
redemption within one year under arrangements satisfactory to the Trustee, at
the expense of the Company, or (d) are deemed paid and discharged pursuant to
the provisions of the Indenture described under "--Legal Defeasance," below. The
Company must, in order to be discharged from its obligations under the Indenture
as a result of events described in the preceding sentence, (1) deposit or cause
to be deposited with the Trustee trust funds in an amount sufficient for the
purpose of paying and discharging the entire indebtedness on such Debt
Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of Debt
Securities which have become due and payable on or prior to the date of such
deposit) or to the stated maturity or redemption date, as the case may be; (2)
have paid or caused to be paid all other sums payable by the Company under the
Indenture; and (3) delivered to the Trustee an officer's certificate and an
opinion of counsel, each stating that all conditions precedent provided for in
the Indenture relating to the satisfaction and discharge of the Indenture have
been complied with. (Indenture Section 8.1)
Legal Defeasance. The Indenture provides that, unless otherwise
provided by the terms of the applicable series of Debt Securities, the Company
may be discharged from any and all obligations in respect of the Debt Securities
of any series (except for certain obligations to register the transfer or
exchange of Debt Securities of such series, to replace stolen, lost or mutilated
Debt Securities of such series, and to maintain paying agencies and certain
provisions relating to the treatment of funds held by paying agents) upon the
deposit with the Trustee, in trust, of money and/or United States Government
Obligations or, in the case of Debt Securities denominated in a single currency
other than United States Dollars, Foreign Government Obligations, that, through
the payment of interest and principal in respect thereof in accordance with
their terms, will provide money in an amount sufficient in the opinion of a
nationally recognized firm of independent public accountants to pay and
discharge each installment of principal (and premium, if any) and interest, if
any, on and any mandatory sinking fund payments in respect of the Debt
Securities of such series on the stated maturity of such payments in accordance
with the terms of the Indenture and such Debt Securities. Such discharge may
occur only if, among other things, the Company shall have delivered to the
Trustee an opinion of counsel stating that the Company has received from, or
there has been published by, the United States Internal Revenue Service a ruling
or, since the date of execution of the Indenture, there has been a change in the
applicable United States federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the Debt
Securities of such series will not recognize income, gain or loss for United
States federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to United States 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 deposit, defeasance and discharge had not occurred. (Indenture Section
8.3)
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Defeasance of Certain Covenants. The Indenture provides that, unless
otherwise provided by the terms of the applicable series of Debt Securities,
upon compliance with certain conditions, (i) the Company may omit to comply with
the covenants described above under "--Consolidation, Merger and Sale of Assets"
and certain other covenants set forth in the Indenture and any other covenants
applicable to such Debt Securities, as well as any additional covenants which
may be set forth in the applicable Prospectus Supplement, and (ii) any omission
to comply with such covenants will not constitute a Default or an Event of
Default with respect to, and certain Events of Default will be inapplicable to,
the Debt Securities of such series ("covenant defeasance"). The conditions
include: the deposit with the Trustee of money and/or United States Government
Obligations or, in the case of Debt Securities denominated in a single currency
other than United States Dollars, Foreign Government Obligations, that, through
the payment of interest and principal in respect thereof in accordance with
their terms, will provide money in an amount sufficient in the opinion of a
nationally recognized firm of independent public accountants to pay and
discharge each installment of principal of, premium, if any, and interest, if
any, on and any mandatory sinking fund payments in respect of the Debt
Securities of such series on the stated maturity of such payments in accordance
with the terms of the Indenture and such Debt Securities; and the delivery to
the Trustee of an opinion of counsel to the effect that the Holders of the Debt
Securities of such series will not recognize income, gain or loss for United
States federal income tax purposes as a result of such deposit and related
covenant defeasance and will be subject to United States 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 deposit and related covenant defeasance had not occurred.
(Indenture Section 8.4)
Covenant Defeasance and Events of Default. In the event the Company
exercises its option to effect covenant defeasance with respect to any series of
Debt Securities and the Debt Securities of such series are declared due and
payable because of the occurrence of any Event of Default, the amount of money
and/or United States Government Obligations or Foreign Government Obligations on
deposit with the Trustee will be sufficient to pay amounts due on the Debt
Securities of such series at the time of their stated maturity but may not be
sufficient to pay amounts due on the Debt Securities of such series at the time
of the acceleration resulting from such Event of Default. However, the Company
shall remain liable for such payments.
"Foreign Government Obligations" means, with respect to Debt Securities
of any series that are denominated in a currency other than United States
Dollars, (i) direct obligations of the government that issued or caused to be
issued such currency for the payment of which obligations its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by or
acting as an agency or instrumentality of such government the timely payment of
which is unconditionally guaranteed as a full faith and credit obligation by
such government, which, in either case under clauses (i) or (ii), are not
callable or redeemable at the option of the issuer thereof.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and
construed in accordance with, the internal laws of the State of New York.
(Indenture Section 10.10).
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DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets
forth general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock will be described in the applicable Prospectus Supplement. The
description of certain provisions of the Preferred Stock set forth below and in
any Prospectus Supplement does not purport to be complete and is subject to and
qualified in its entirety by reference to the Company's Restated Certificate of
Incorporation, as amended to date (the "Restated Certificate of Incorporation"),
and the certificate of designation (a "Certificate of Designation") relating to
each series of the Preferred Stock which will be filed with the Commission and
incorporated by reference in the Registration Statement of which this Prospectus
is a part at or prior to the time of the issuance of such series of the
Preferred Stock.
GENERAL
The Company has authorized 5,000,000 shares of Preferred Stock, par
value $.01 per share, of which no shares are currently outstanding. The Board of
Directors has been authorized, subject to certain limitations set forth in the
Restated Certificate of Incorporation, to issue shares of Preferred Stock in one
or more series, by resolution providing for the issuance of such series, and to
(i) fix the number of shares which will constitute such series and the
designation thereof, (ii) fix the stated value, if any, of such series and the
consideration for which shares of such series may be issued, (iii) determine the
voting rights of shares of such series, (iv) determine the terms and conditions,
if any, under which such series may be redeemable, (v) determine the rate of any
dividends payable with respect to shares of such series and any preferences or
relations to dividends payable with respect to shares of other classes of the
Company's capital stock, (vi) determine the rights of shares of such series upon
the liquidation of the Company, (vii) determine if shares of such series are
convertible into or exchangeable for shares of another class or classes of
capital stock of the Company and the rates or prices at which shares of such
series are convertible or exchangeable, and (viii) determine such other
preferences and relative, participating, optional or other special rights and
qualifications of shares of such series as are not inconsistent with the terms
of the Restated Certificate of Incorporation. To the extent permitted by the
resolutions of the Board of Directors authorizing any such series of Preferred
Stock, a duly authorized committee of the Board of Directors may determine
certain of the designations described above which are made with respect to such
series.
The Preferred Stock shall have the dividend, liquidation, redemption
and voting rights set forth below unless otherwise provided in the applicable
Prospectus Supplement relating to the particular series of the Preferred Stock
offered thereby for the specific terms of such series.
The Preferred Stock will, when issued, be fully paid and nonassessable
and will have no preemptive rights. The rights of the holders of each series of
the Preferred Stock will be subordinate to those of the Company's general
creditors.
Unless otherwise noted in the applicable Prospectus Supplement, Harris
Trust and Savings Bank of Chicago, Illinois will be the registrar and transfer
agent for any Preferred Stock.
DIVIDEND RIGHTS
Holders of the Preferred Stock of each series will be entitled to
receive, when and as declared by the Board of Directors of the Company, out of
funds of the Company legally available therefor, cash
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dividends on such dates and at such rates as are set forth in, or as are
determined by the method described in, the applicable Prospectus Supplement.
Each such dividend will be payable to the holders of record as they appear on
the stock books of the Company on such record dates, fixed by the Board of
Directors of the Company, as specified in the applicable Prospectus Supplement.
Such dividends may be cumulative or noncumulative, as provided in the applicable
Prospectus Supplement. If the Board of Directors of the Company fails to declare
a dividend payable on a dividend payment date on any series of Preferred Stock
for which dividends are noncumulative, then the right to receive a dividend in
respect of the dividend period ending on such dividend payment date will be
lost, and the Company will have no obligation to pay any dividend for such
period, whether or not dividends on such series are declared payable on any
future dividend payment dates. Dividends on the shares of each series of
Preferred Stock for which dividends are cumulative will accrue from the date
fixed by the Board of Directors. Unless dividends on all outstanding shares of
series of Preferred Stock having cumulative dividend rights have been fully
paid, no dividend (other than stock dividends) may be paid on the Common Stock
or any other class of stock ranking junior to such series of Preferred Stock.
LIQUIDATION PREFERENCES
Unless otherwise specified in the applicable Prospectus Supplement, in
the event of any liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, the holders of each series of the Preferred Stock will
be entitled to receive out of the assets of the Company available for
distribution to stockholders, before any distribution of assets is made to the
holders of Common Stock or any other shares of stock of the Company ranking
junior as to such distribution to such series of the Preferred Stock, the amount
(if any) set forth in the applicable Prospectus Supplement, together with any
unpaid cumulative dividends. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Company, the amounts payable with respect to
the Preferred Stock of any series are not paid in full, the holders of the
Preferred Stock of such series and of any other series of equal preference will
share ratably in any such distribution of assets of the Company in proportion to
the full respective preferential amounts to which they are entitled. After
payment to the holders of the Preferred Stock of each series that has a
liquidation preference of the full preferential amounts of the liquidating
distribution to which they are entitled, the holders of each such series of the
Preferred Stock will be entitled to no further participation in any distribution
of assets by the Company. A consolidation, merger or sale of all or
substantially all of the assets of the Company would not be considered a
"liquidation" within the meaning of the foregoing provisions.
REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or from
time to time in part, at the option of the Company, and may be subject to
mandatory redemption, in each case upon terms, at the time and at the redemption
prices set forth in the applicable Prospectus Supplement. Shares of the
Preferred Stock redeemed by the Company will be restored to the status of
authorized but unissued shares of Preferred Stock of the Company.
CONVERSION AND EXCHANGE RIGHTS
The terms, if any, on which shares of Preferred Stock of any series may
be exchanged for or converted into shares of Common Stock, shares of another
series of Preferred Stock or into any other security will be set forth in the
applicable Prospectus Supplement. Such terms may include provisions for
conversion, either mandatory, at the option of the holder, or at the option of
the Company, in which case the number of shares of Common Stock, the shares of
another series of Preferred Stock or the
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amount of any other securities to be received by the holders of Preferred Stock
would be calculated as of a time and in the manner stated in the applicable
Prospectus Supplement.
VOTING
Except as set forth below, the holders of shares of Preferred Stock
will not have any right or power to vote on any matter presented to a vote of
stockholders. So long as there are any shares of Preferred Stock outstanding,
the Company would be prohibited, without the affirmative vote of at least
two-thirds of the outstanding Preferred Stock, from (i) authorizing a new class
of stock which ranks senior to or on parity with the Preferred Stock in the
payment of dividends or in liquidation preference; (ii) adversely altering the
rights, preferences or privileges of the Preferred Stock; or (iii) effecting a
sale, lease or conveyance of all or substantially all of the Company's assets,
or a merger or consolidation of the Company with or into another entity, if the
result of such transaction would be (A) the redemption of the Preferred Stock
for less than its stated liquidation preference plus any accrued and unpaid
dividends or (B) the adverse alteration of the rights, preferences or privileges
of the Preferred Stock, unless in the case of clauses (i), (ii) or (iii),
provision is made for the redemption of all shares of Preferred Stock at the
time outstanding. If accrued dividends on any series of Preferred Stock have not
been paid or set aside in an amount equivalent to six quarterly dividends or the
Company shall have failed to discharge any applicable mandatory redemption
provisions, the holders of a majority of the outstanding shares of any series of
Preferred Stock, voting separately as a class, would be entitled to increase the
number of directors of the Company by a number specified with respect to such
series of Preferred Stock and elect such number of additional directors. These
directors would serve until all accrued and unpaid dividends on all outstanding
shares of Preferred Stock had been paid or set aside in full or until all shares
of such series of Preferred Stock have been redeemed by the Company. Except for
the specific voting rights summarized above in this paragraph, the holders of
any series of Preferred Stock would have only such voting rights as may be
authorized by the Board of Directors of the Company in establishing the terms of
that series.
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DESCRIPTION OF COMMON STOCK
GENERAL
The Company's Restated Certificate of Incorporation authorizes the
issuance of 75,000,000 shares of Common Stock, par value $.01 per share. As of
November 30, 1997, there were 29,240,183 shares of Common Stock outstanding. The
outstanding shares of Common Stock are validly issued, fully paid and
non-assessable, and the shares of Common Stock offered pursuant to this
Prospectus and a related Prospectus Supplement, when issued and sold as
contemplated herein and therein, will be validly issued, fully paid and
non-assessable.
Subject to the rights of the holders of any Preferred Stock and except
as provided below, each holder of Common Stock on the applicable record date is
entitled to receive such dividends as may be declared by the Board of Directors
out of funds legally available therefor. In the event of liquidation,
dissolution or winding-up of the Company, each stockholder of record on the
applicable date has the right to share equally and ratably in any distribution
of the Company's assets after payment of liabilities (including payments with
respect to any outstanding shares of Preferred Stock). Each holder of Common
Stock is entitled to one vote for each share held of record on the applicable
record date on all matters presented to a vote of stockholders, and, except as
described below, a majority vote is required for all action to be taken by
stockholders. The Common Stock has no preemptive rights and no redemption,
sinking fund or conversion provisions.
Harris Trust and Savings Bank of Chicago, Illinois is the registrar and
transfer agent for the Common Stock.
Dividends. The entitlement of holders of Common Stock to receive
dividends is subject to the dividend and liquidation rights of any preferred
stock that may be issued, and subject to the dividend restrictions in the
multicurrency amended and restated domestic bank revolving credit facility,
entered into by the Company and the banks a party thereto in July 1996 (as
amended, the "Credit Agreement") and the Indenture, dated as of September 16,
1992 (as supplemented, the "Existing Indenture"), governing the Company's
$75,000,000 aggregate principal amount of 9 3/4% Senior Subordinated Notes due
2002 (the "Existing Notes"). Borrowings under the Credit Agreement are
guaranteed jointly and severally by certain of the Company's subsidiaries and
secured by a pledge of their stock and intercompany notes. The Existing Notes
are jointly and severally guaranteed by certain of the Company's subsidiaries
and are subordinated to the Credit Agreement. Principal on the Existing Notes is
payable in annual installments of $18,750,000 commencing in 2000 and the
Existing Notes are redeemable at various premiums by the Company commencing in
1997.
As of September 30, 1997, the Company had approximately $71 million
available for payment of cash dividends pursuant to the Credit Agreement, which
is more restrictive than the Existing Indenture.
CERTAIN PROVISIONS OF THE RESTATED CERTIFICATE OF INCORPORATION AND
AMENDED AND RESTATED BY-LAWS
The following summary of certain provisions of the Restated Certificate
of Incorporation and the Company's Amended and Restated By-Laws (the "Amended
and Restated By-Laws") does not purport to be complete and is subject to and
qualified in its entirety by reference to the Restated Certificate of
Incorporation and the Amended and Restated By-Laws which are incorporated by
reference as exhibits to the Registration Statement of which this Prospectus is
a part.
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Classification of Directors. The Company's Restated Certificate of
Incorporation provides that its Board of Directors shall be divided into three
classes, each class being as nearly equal in number as possible, and that at
each annual meeting of the Company's stockholders, the successors to the
directors whose terms expire that year shall be elected for a term of three
years. Within the limit of not less than three nor more than twelve directors,
the number of directors is fixed by the Board of Directors. Newly created
directorships and any vacancies on the Board of Directors are filled by a
majority vote of the remaining directors then in office, and are to be
apportioned among the three classes so as to keep the number of directors in
each class as nearly equal as possible. The provisions of the Restated
Certificate of Incorporation relating to the classified Board may be amended
only upon the vote of the holders of at least 80% of the outstanding shares of
Common Stock. Directors may be removed by the affirmative vote of the holders of
a majority of the outstanding voting shares of the Company, but only for cause.
Stockholder Nominations and Proposals. Any stockholder intending to
nominate a person for election as director or present a proposal at annual or
special meetings of stockholders may do so only if written notice of the
stockholder's intent to make such nomination, including certain related
information specified in the Amended and Restated By-Laws, is given to the
Secretary of the Company at least 60 days prior to the anniversary date of
the previous year's annual meeting (or in the case of a special meeting, not
later than the seventh day following the date on which notice of that meeting is
first given to stockholders).
CERTAIN ANTI-TAKEOVER PROVISIONS OF DELAWARE LAW
The Company is a Delaware corporation and is subject to Section 203 of
the Delaware General Corporation Law. In general, Section 203 prevents an
"interested stockholder" (defined generally as a person owning 15% or more of
the Company's outstanding voting stock) from engaging in a "business
combination" (as defined in Section 203) with the Company (or its majority-owned
subsidiaries) for three years following the time such person became an
interested stockholder unless: (i) before such person became an interested
stockholder, the Company's Board of Directors approved the transaction in which
the interested stockholder became an interested stockholder or approved the
business combination; (ii) upon consummation of the transaction that resulted in
the interested stockholder becoming an interested stockholder, the interested
stockholder owns at least 85% of the Company's voting stock outstanding at the
time the transaction commenced (excluding stock held by directors who are also
officers of the Company and by employee stock plans that do not provide
employees with the rights to determine confidentially whether shares held
subject to the plan will be tendered in a tender or exchange offer); or (iii) at
or following the transaction in which such person became an interested
stockholder, the business combination is approved by the Company's Board of
Directors and approved at a meeting of stockholders by the affirmative vote of
the holders of at least two-thirds of the Company's outstanding voting stock not
owned by the interested stockholder. Under Section 203, the restrictions
described above also do not apply to certain business combinations proposed by
an interested stockholder following the earlier of the announcement or
notification of one of certain extraordinary transactions involving the Company
and a person who had not been an interested stockholder during the previous
three years or who became an interested stockholder with the approval of a
majority of the Company's directors, if such extraordinary transaction is
approved or not opposed by a majority of the directors who were directors prior
to any person becoming an interested stockholder during the previous three years
or were recommended for election or elected to succeed such directors by a
majority of such directors.
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DESCRIPTION OF SECURITIES WARRANTS
The Company may issue Securities Warrants for the purchase of Debt
Securities, Preferred Stock or Common Stock. Securities Warrants may be issued
independently or together with Debt Securities or shares of Preferred Stock or
Common Stock offered by any Prospectus Supplement and may be attached to or
separate from such Debt Securities or shares of Preferred Stock or Common Stock.
Each series of Securities Warrants will be issued under a separate warrant
agreement (a "Securities Warrant Agreement") to be entered into between the
Company and Harris Trust and Savings Bank of Chicago, Illinois or another bank
or trust company, as warrant agent (the "Securities Warrant Agent"), all as set
forth in the applicable Prospectus Supplement. The Securities Warrant Agent will
act solely as an agent of the Company in connection with the Securities Warrants
and will not assume any obligation or relationship of agency or trust for or
with any holders of Securities Warrants or beneficial owners of Securities
Warrants. The description of certain provisions of the Securities Warrants set
forth below and in any Prospectus Supplement does not purport to be complete and
is subject to and qualified in its entirety by reference to the applicable
Securities Warrant Agreement, including the forms of Securities Warrant
Certificates representing the Securities Warrants, which will be filed with the
Commission and incorporated by reference in the Registration Statement of which
this Prospectus is a part at or prior to the time of the issuance of such series
of the Securities Warrants.
The Prospectus Supplement relating to a particular issue of Securities
Warrants will set forth the terms of such Securities Warrants, including, as
applicable: (i) the designation, aggregate principal amount, currencies,
denominations and terms of the series of Debt Securities purchasable upon
exercise of Securities Warrants to purchase Debt Securities and the price at
which such Debt Securities may be purchased upon such exercise; (ii) the
designation, number, stated value and terms (including, without limitation,
liquidation, dividend, conversion and voting rights) of the series of Preferred
Stock purchasable upon exercise of Securities Warrants to purchase Preferred
Stock and the price at which such number of shares of Preferred Stock of such
series may be purchased upon such exercise; (iii) the number of shares of Common
Stock purchasable upon the exercise of Securities Warrants to purchase Common
Stock and the price at which such number of shares of Common Stock may be
purchased upon such exercise; (iv) the date on which the right to exercise such
Securities Warrants shall commence and the date (the "Expiration Date") on which
such right shall expire; (v) United States federal income tax consequences
applicable to such Securities Warrants; and (vi) any other terms of such
Securities Warrants. Securities Warrants for the purchase of Preferred Stock and
Common Stock will be offered and exercisable for United States dollars only.
Securities Warrants will be issued in registered form only. The exercise price
for Securities Warrants will be subject to adjustment as described in the
applicable Prospectus Supplement.
Each Securities Warrant will entitle the holder thereof to purchase
such principal amount of Debt Securities or such number of shares of Preferred
Stock or Common Stock, as the case may be, at such exercise price as shall in
each case be set forth in, or calculable from, the Prospectus Supplement
relating to the offered Securities Warrants, which exercise price may be subject
to adjustment upon the occurrence of certain events as set forth in such
Prospectus Supplement. After the close of business on the Expiration Date (or
such later date to which such Expiration Date may be extended by the Company),
unexercised Securities Warrants will become void. The place or places where, and
the manner in which, Securities Warrants may be exercised shall be specified in
the Prospectus Supplement relating to such Securities Warrants.
Prior to the exercise of any Securities Warrants to purchase Debt
Securities, holders of such Securities Warrants will not have any of the rights
of holders of the Debt Securities purchasable upon
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such exercise, including the right to receive payments of principal of,
premium, if any, or interest on the Debt Securities purchasable upon such
exercise or to enforce covenants in the Indenture. Prior to the exercise of any
Securities Warrants to purchase Preferred Stock or Common Stock, holders of such
Securities Warrants will not have any rights of holders of the Preferred Stock
or Common Stock purchasable upon such exercise, including the right to receive
payments of dividends, if any, on the Preferred Stock or Common Stock
purchasable upon such exercise or to exercise any applicable right to vote.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities in or outside of the United
States to one or more underwriters for public offering and sale by them and may
also sell the Offered Securities to investors directly or through agents. Any
such underwriter or agent involved in the offer and sale of Offered Securities
will be named in the applicable Prospectus Supplement. The Company has reserved
the right to sell Offered Securities directly to investors on its own behalf in
those jurisdictions where and in such manner as it is authorized to do so.
The distribution of the Offered Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at prices related
to such prevailing market prices, or at negotiated prices. The Company may also,
from time to time, authorize dealers, acting as the Company's agents, to offer
and sell Offered Securities upon the terms and conditions as are set forth in
the applicable Prospectus Supplement. In connection with the sale of Offered
Securities, underwriters may receive compensation from the Company in the form
of underwriting discounts or commissions and may also receive commissions from
purchasers of the Offered Securities for whom they may act as agent.
Underwriters may sell Offered Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agent. Unless otherwise indicated in a Prospectus Supplement, an agent
will be acting on a best efforts basis and a dealer will purchase Offered
Securities as a principal, and may then resell such Offered Securities at
varying prices to be determined by the dealer.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of Offered Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement. Dealers and agents
participating in the distribution of Offered Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Offered Securities may be deemed to be
underwriting discounts and commissions. Underwriters, dealers and agents may be
entitled, under agreements entered into with the Company, to indemnification
against and contribution toward certain civil liabilities, including liabilities
under the Securities Act, and to reimbursement by the Company for certain
expenses.
Certain of the underwriters, dealers or agents and their affiliates may
be customers of, engage in transactions with and perform services for the
Company in the ordinary course of business.
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LEGAL MATTERS
Certain legal matters with respect to the Offered Securities offered
hereby will be passed upon for the Company by Latham & Watkins, Chicago,
Illinois. Certain partners of Latham & Watkins, members of their families,
related persons and others, have an indirect interest, through limited
partnerships, in less than 1% of the Company's common stock. Such persons do not
have the power to vote or dispose of such shares of common stock. Certain legal
matters will be passed upon for any agents or underwriters by counsel for such
agents or underwriters identified in the applicable Prospectus Supplement.
EXPERTS
The consolidated financial statements of the Company as of December 31,
1996 and December 31, 1995 and for each of the three years in the period ended
December 31, 1996, incorporated by reference herein from the Company's Annual
Report on Form 10-K for the year ended December 31, 1996 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report, which is
incorporated by reference herein, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
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=========================================================================== ===============================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY [LOGO]
REPRESENTATION OTHER THAN CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR THE UNDERWRITERS. THIS PROSPECTUS IDEX CORPORATION
DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY
ANY SECURITIES OTHER THAN THOSE SPECIFICALLY OFFERED HEREBY, NOR DOES
IT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO $250,000,000
BUY ANY SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO
WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN DEBT SECURITIES
THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION PREFERRED STOCK
CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF THIS COMMON STOCK
PROSPECTUS. SECURITIES WARRANTS
------------
PROSPECTUS
------------
----------------
TABLE OF CONTENTS __________, 199_
PAGE
Available Information....................................................3
Information Incorporated by Reference....................................3
Disclosure Regarding Forward-Looking Statements..........................4
The Company..............................................................5
Use of Proceeds..........................................................5
Ratio of Earnings to Fixed Charges.......................................6
Description of Debt Securities...........................................7
Description of Preferred Stock..........................................16
Description of Common Stock.............................................19
Description of Securities Warrants......................................21
Plan of Distribution....................................................22
Legal Matters...........................................................23
Experts.................................................................23
=========================================================================== ===============================================
29
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and distribution
of the securities being registered, other than underwriting compensation, are:
S.E.C. Registration Fee........................................... $ 75,757.58
*Legal Fees and Expenses........................................... 250,000.00
*Accounting Fees and Expenses...................................... 150,000.00
*Trustee's Fees and Expenses....................................... 15,000.00
*Rating Agency Fees................................................ 40,000.00
*Blue Sky Fees and Expenses........................................ 5,000.00
*Printing and Engraving Fees....................................... 125,000.00
*Miscellaneous..................................................... 4,242.42
==========
*TOTAL $ 665,000.00
- -------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the Delaware General Corporation Law, the Company's
Restated Certificate of Incorporation provides that a director of the Company
will not be personally liable to the Company or its stockholders for monetary
damages for any breach of fiduciary duty as a director, except for liability (i)
for breach of the duty of loyalty to the Company or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law (governing distributions to stockholders), or (iv) for any
transaction for which a director derives an improper personal benefit. In
addition, Section 145 of the Delaware General Corporation Law and Article III,
Section 13 of the Company's Amended and Restated By-Laws, under certain
circumstances, provide for the indemnification of the Company's officers,
directors, employees and agents against liabilities which they may incur in such
capacities. A summary of the circumstances in which such indemnification is
provided for is contained herein, but that description is qualified in its
entirety by reference to Article III, Section 13 of the Company's Amended and
Restated By-Laws.
In general, any officer, director, employee or agent will be
indemnified against expenses, including attorney's fees, fines, settlements or
judgments, which were actually and reasonably incurred, in connection with a
legal proceeding, other than one brought by or on behalf of the Company, to
which he or she was a party as a result of such relationship, if he or she acted
in good faith, and in the manner he or she believed to be in or not opposed to
the Company's best interest and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. If the
action is brought by or on behalf of the Company, the person to be indemnified
must have acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the Company's best interest, but no indemnification will
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Company unless and only to the extent
that the Court of Chancery of Delaware, or the court in which such action was
brought, determines upon application that, despite adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expense which such Court of Chancery
or such other court shall deem proper.
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Any indemnification under the previous paragraphs (unless ordered by a
court) will be made by the Company only as authorized in the specific case upon
a determination that indemnification of the director, officer, employee or agent
is proper under the circumstances because he or she has met the applicable
standard of conduct set forth above. Such determination will be made (i) by the
Company's Board of Directors by a majority vote of a quorum of disinterested
directors who were not parties to such actions, (ii) by independent legal
counsel in a written opinion, or (iii) by the stockholders. To the extent that a
director, officer, employee or agent of the Company is successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in the
previous paragraph, he or she will be indemnified against expenses (including
attorney's fees) actually and reasonably incurred by him or her in connection
therewith.
Expenses incurred by an officer or director in defending a civil or
criminal action, suit or proceeding may be paid by the Company in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it is ultimately determined that he or she is not entitled to be indemnified by
the Company as authorized by the Company's Amended and Restated By-Laws. Such
expenses incurred by other employees and agents may be so paid upon such terms
and conditions, if any, as the Company's Board of Directors deems appropriate.
The indemnification and advancement of expenses provided by, or granted
pursuant to, Section 13 of the Company's Amended and Restated By-Laws is not
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office. If a claim for indemnification or payment of expenses under Section 13
of the Company's Amended and Restated By-Laws is not paid in full within ninety
(90) days after a written claim therefor has been received by the Company, the
claimant may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action, the Company has the burden of
proving that the claimant was not entitled to the requested indemnification or
payment of expenses under applicable law.
The Company's Board of Directors may authorize, by a vote of a majority
of a quorum of the Company's Board of Directors, the Company to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Company, or is or was serving at the request of the
Company 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 status as such, whether or not the Company would have the
power to indemnify him or her against such liability under the provisions of
Section 13 of the Company's Amended and Restated By-Laws. The Company's Board of
Directors may authorize the Company to enter into a contract with any person who
is or was a director, officer, employee or agent of the Company or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise
providing for indemnification rights equivalent to or, if the Company's Board of
Directors so determines, greater than those provided for in Section 13 of the
Company's Amended and Restated By-Laws.
The Company has also purchased insurance for its directors and officers
for certain losses arising from claims or charges made against them in their
capacities as directors and officers of the Company.
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ITEM 16. EXHIBITS
*1 Underwriting Agreement.
3.1 Restated Certificate of Incorporation of IDEX Corporation
(formerly HI, Inc.) (incorporated by reference to Exhibit 3.1
to the Registration Statement on Form S-1 of IDEX Corporation,
et al., Registration No. 33-21205, as filed on April 21,
1988).
3.1 (a) Amendment to Restated Certificate of Incorporation of IDEX
Corporation (formerly HI, Inc.), as amended (incorporated by
reference to Exhibit 3.1 (a) to the Quarterly Report of IDEX
Corporation on Form 10-Q for the quarter ended March 31, 1996,
Commission File No. 1-10235).
3.2 Amended and Restated By-Laws of IDEX Corporation (incorporated
by reference to Exhibit 3.2 to Post-Effective Amendment No. 2
to the Registration Statement on Form S-1 of IDEX Corporation,
et al., Registration No. 33-21205, as filed on July 17, 1989).
3.2 (a) Amended and Restated Article III, Section 13 of the
Amended and Restated By-Laws of IDEX Corporation (incorporated
by reference to Exhibit 3.2 (a) to Post-Effective Amendment
No. 3 to the Registration Statement on Form S-1 of IDEX
Corporation, et al., Registration No. 33-21205, as filed on
February 12, 1990).
4.1 Form of Indenture.
*4.2 Form of Debt Securities.
*4.3 Certificate of Designation of Preferred Stock.
*4.4 Warrant Agreement.
5 Opinion of Latham & Watkins.
12 Statement Regarding Computation of Ratios.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5).
24 Powers of Attorney (contained on Page II-6).
**25 Statement of Eligibility of Trustee on Form T-1.
- -----------------
* To be filed by amendment or by a report on Form 8-K pursuant to
Regulation S-K, Item 601(b).
** To be filed separately and at a later date pursuant to Trust Indenture
Act Section 305(b)(2).
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ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that the information required to be included in a
post-effective amendment by paragraphs (a)(1)(i) and (a)(1)(ii) above may be
contained in periodic reports filed by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes 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 section 15(d) of the
Securities Exchange Act of 1934 and (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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of their counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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(j) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
Subsection (a) of Section 310 of the Trust Indenture Act (the "Act") in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, IDEX
Corporation 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 Chicago, Illinois on December 5, 1997.
IDEX CORPORATION
By /s/ Wayne P. Sayatovic
---------------------------------
Wayne P. Sayatovic
Senior Vice President -- Finance,
Chief Financial Officer and Secretary
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Donald N. Boyce and Wayne P.
Sayatovic, and each of them, with full power of substitution and full power to
act without the other, his true and lawful attorney-in-fact and agent to act for
him or her in his or her name, place and stead, in any and all capacities, to
sign a registration statement on Form S-3 and any or all amendments thereto
(including without limitation any post-effective amendments thereto), and any
registration statement for the same offering that is to be effective under Rule
462(b) of the Securities Act, and to file each of the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises in order to
effectuate the same as fully, to all intents and purposes, as they or he might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, 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 by each of the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Donald N. Boyce Chairman of the Board, President and Chief Executive December 5, 1997
- -------------------------
Donald N. Boyce Officer (Principal Executive Officer)
/s/ Wayne P. Sayatovic Senior Vice President -- Finance, Chief Financial December 5, 1997
- --------------------------
Wayne P. Sayatovic Officer and Secretary (Principal Financial and
Accounting Officer)
/s/ Richard E. Heath Director December 5, 1997
- --------------------------
Richard E. Heath
/s/ Henry R. Kravis Director December 5, 1997
- --------------------------
Henry R. Kravis
/s/ William H. Luers Director December 5, 1997
- ---------------------------
William H. Luers
II-6
35
/s/ Paul E. Raether Director December 5, 1997
- ----------------------------
Paul E. Raether
/s/ Clifton S. Robbins Director December 5, 1997
- -----------------------------
Clifton S. Robbins
/s/ George R. Roberts Director December 5, 1997
- ----------------------------
George R. Roberts
/s/ Neil A. Springer Director December 5, 1997
- -----------------------------
Neil A. Springer
/s/ Micheal T. Tokarz Director December 5, 1997
- ----------------------------
Michael T. Tokarz
II-7
36
EXHIBIT INDEX TO REGISTRATION STATEMENT ON FORM S-3
Exhibit No. Exhibit
- ----------- -------
*1 Underwriting Agreement.
3.1 Restated Certificate of Incorporation of IDEX Corporation
(formerly HI, Inc.) (incorporated by reference to Exhibit 3.1
to the Registration Statement on Form S-1 of IDEX Corporation,
et al., Registration No. 33-21205, as filed on April 21,
1988).
3.1 (a) Amendment to Restated Certificate of Incorporation of IDEX
Corporation (formerly HI, Inc.), as amended (incorporated by
reference to Exhibit 3.1 (a) to the Quarterly Report of IDEX
Corporation on Form 10-Q for the quarter ended March 31, 1996,
Commission File No. 1-10235).
3.2 Amended and Restated By-Laws of IDEX Corporation (incorporated
by reference to Exhibit 3.2 to Post-Effective Amendment No. 2
to the Registration Statement on Form S-1 of IDEX Corporation,
et al., Registration No. 33-21205, as filed on July 17, 1989).
3.2 (a) Amended and Restated Article III, Section 13 of the
Amended and Restated By-Laws of IDEX Corporation (incorporated
by reference to Exhibit 3.2 (a) to Post-Effective Amendment
No. 3 to the Registration Statement on Form S-1 of IDEX
Corporation, et al., Registration No. 33-21205, as filed on
February 12, 1990).
4.1 Form of Indenture.
*4.2 Form of Debt Securities.
*4.3 Certificate of Designation of Preferred Stock.
*4.4 Warrant Agreement.
5 Opinion of Latham & Watkins.
12 Statement Regarding Computation of Ratios.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5).
24 Powers of Attorney (contained on Page II-6).
**25 Statement of Eligibility of Trustee on Form T-1.
- -----------------
* To be filed by amendment or by a report on Form 8-K pursuant to
Regulation S-K, Item 601(b).
** To be filed separately and at a later date pursuant to Trust Indenture
Act Section 305(b)(2).
II-8
1
================================================================================
IDEX CORPORATION
---------------------------------------
INDENTURE
Dated as of _________, 199_
---------------------------------------
[Name of Trustee]
Trustee
================================================================================
2
TABLE OF CONTENTS
TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE..........................1
SECTION 1.1. DEFINITIONS............................................1
SECTION 1.2. OTHER DEFINITIONS......................................6
SECTION 1.3. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT......6
SECTION 1.4. RULES OF CONSTRUCTION..................................7
ARTICLE II. THE SECURITIES......................................................7
SECTION 2.1. ISSUABLE IN SERIES.....................................7
SECTION 2.2. ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES.........8
SECTION 2.3. EXECUTION AND AUTHENTICATION..........................10
SECTION 2.4. REGISTRAR AND PAYING AGENT............................11
SECTION 2.5. PAYING AGENT TO HOLD MONEY IN TRUST...................12
SECTION 2.6. SECURITYHOLDER LISTS..................................13
SECTION 2.7. TRANSFER AND EXCHANGE.................................13
SECTION 2.8. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES......13
SECTION 2.9. OUTSTANDING SECURITIES................................14
SECTION 2.10. TREASURY SECURITIES..................................15
SECTION 2.11. TEMPORARY SECURITIES.................................15
SECTION 2.12. CANCELLATION.........................................15
SECTION 2.13. DEFAULTED INTEREST...................................16
SECTION 2.14. GLOBAL SECURITIES....................................16
SECTION 2.15. CUSIP, ISIN AND COMMON CODE NUMBERS..................17
ARTICLE III. REDEMPTION.........................................................18
SECTION 3.1. NOTICE TO TRUSTEE.....................................18
SECTION 3.2. SELECTION OF SECURITIES TO BE REDEEMED................18
SECTION 3.3. NOTICE OF REDEMPTION..................................18
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION........................19
SECTION 3.5. DEPOSIT OF REDEMPTION PRICE...........................19
SECTION 3.6. SECURITIES REDEEMED IN PART...........................19
ARTICLE IV. COVENANTS..........................................................20
SECTION 4.1. PAYMENT OF PRINCIPAL AND INTEREST.....................20
SECTION 4.2. SEC REPORTS...........................................20
SECTION 4.3. COMPLIANCE CERTIFICATE................................20
SECTION 4.4. STAY, EXTENSION AND USURY LAWS........................20
SECTION 4.5. CORPORATE EXISTENCE...................................21
SECTION 4.6. TAXES.................................................21
ARTICLE V. SUCCESSORS.........................................................21
SECTION 5.1. WHEN COMPANY MAY MERGE, ETC...........................21
SECTION 5.2. SUCCESSOR CORPORATION SUBSTITUTED.....................22
3
ARTICLE VI. DEFAULTS AND REMEDIES..........................................22
SECTION 6.1. EVENTS OF DEFAULT.....................................22
SECTION 6.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT....24
SECTION 6.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE..........................................25
SECTION 6.4. TRUSTEE MAY FILE PROOFS OF CLAIM......................26
SECTION 6.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF SECURITIES.......................................27
SECTION 6.6. APPLICATION OF MONEY COLLECTED........................27
SECTION 6.7. LIMITATION ON SUITS...................................28
SECTION 6.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL
AND INTEREST........................................28
SECTION 6.9. RESTORATION OF RIGHTS AND REMEDIES....................29
SECTION 6.10. RIGHTS AND REMEDIES CUMULATIVE.......................29
SECTION 6.11. DELAY OR OMISSION NOT WAIVER.........................29
SECTION 6.12. CONTROL BY HOLDERS...................................29
SECTION 6.13. WAIVER OF PAST DEFAULTS..............................30
SECTION 6.14. UNDERTAKING FOR COSTS................................30
ARTICLE VII. TRUSTEE.......................................................31
SECTION 7.1. DUTIES OF TRUSTEE.....................................31
SECTION 7.2. RIGHTS OF TRUSTEE.....................................32
SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE..........................33
SECTION 7.4. TRUSTEE'S DISCLAIMER..................................33
SECTION 7.5. NOTICE OF DEFAULTS....................................33
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS.........................34
SECTION 7.7. COMPENSATION AND INDEMNITY............................34
SECTION 7.8. REPLACEMENT OF TRUSTEE................................35
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC......................36
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION........................36
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY....36
ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE.......................36
SECTION 8.1. SATISFACTION AND DISCHARGE OF INDENTURE...............36
SECTION 8.2. APPLICATION OF TRUST FUNDS; INDEMNIFICATION...........38
SECTION 8.3. LEGAL DEFEASANCE OF SECURITIES OF ANY SERIES..........38
SECTION 8.4. COVENANT DEFEASANCE...................................40
SECTION 8.5. REPAYMENT TO COMPANY..................................41
ARTICLE IX. AMENDMENTS AND WAIVERS.........................................42
SECTION 9.1. WITHOUT CONSENT OF HOLDERS............................42
SECTION 9.2. WITH CONSENT OF HOLDERS...............................42
SECTION 9.3. LIMITATIONS...........................................43
SECTION 9.4. COMPLIANCE WITH TRUST INDENTURE ACT...................44
4
SECTION 9.5. REVOCATION AND EFFECT OF CONSENTS.....................44
SECTION 9.6. NOTATION ON OR EXCHANGE OF SECURITIES.................44
SECTION 9.7. TRUSTEE PROTECTED.....................................44
ARTICLE X. MISCELLANEOUS...................................................45
SECTION 10.1. TRUST INDENTURE ACT CONTROLS.........................45
SECTION 10.2. NOTICES..............................................45
SECTION 10.3. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS..........46
SECTION 10.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT...46
SECTION 10.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION........46
SECTION 10.6. RULES BY TRUSTEE AND AGENTS..........................47
SECTION 10.7. LEGAL HOLIDAYS.......................................47
SECTION 10.8. NO RECOURSE AGAINST OTHERS...........................47
SECTION 10.9. COUNTERPARTS.........................................47
SECTION 10.10. GOVERNING LAWS......................................47
SECTION 10.11. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.......48
SECTION 10.12. SUCCESSORS..........................................48
SECTION 10.13. SEVERABILITY........................................48
SECTION 10.14. TABLE OF CONTENTS, HEADINGS, ETC....................48
SECTION 10.15. SECURITIES IN A FOREIGN CURRENCY OR IN ECU..........48
SECTION 10.16. JUDGMENT CURRENCY...................................49
ARTICLE XI. SINKING FUNDS..................................................50
SECTION 11.1. APPLICABILITY OF ARTICLE.............................50
SECTION 11.2. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES..........................................50
SECTION 11.3. REDEMPTION OF SECURITIES FOR SINKING FUND............51
5
IDEX CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of __________, 199_
Section 310(A)(1) .............................................. 7.10
(A)(2) .............................................. 7.10
(A)(3) .............................................. NOT APPLICABLE
(A)(4) .............................................. NOT APPLICABLE
(A)(5) .............................................. 7.10
(B) .............................................. 7.10
Section 311(A) .............................................. 7.11
(B) .............................................. 7.11
(C) .............................................. NOT APPLICABLE
Section 312(A) .............................................. 2.6
(B) .............................................. 10.3
(C) .............................................. 10.3
Section 313(A) .............................................. 7.6
(B)(1) .............................................. 7.6
(B)(2) .............................................. 7.6
(C)(1) .............................................. 7.6
(D) .............................................. 7.6
Section 314(A) .............................................. 4.2, 10.5
(B) .............................................. NOT APPLICABLE
(C)(1) .............................................. 10.4
(C)(2) .............................................. 10.4
(C)(3) .............................................. NOT APPLICABLE
(D) .............................................. NOT APPLICABLE
(E) .............................................. 10.5
(F) .............................................. NOT APPLICABLE
Section 315(A) .............................................. 7.1
(B) .............................................. 7.5
(C) .............................................. 7.1
(D) .............................................. 7.1
(E) .............................................. 6.14
Section 316(A) .............................................. 2.10
(A)(1)(A) .............................................. 6.12
(A)(1)(B) .............................................. 6.13
(B) .............................................. 6.8
Section 317(A)(1) .............................................. 6.3
(A)(2) .............................................. 6.4
(B) .............................................. 2.5
Section 318(A) .............................................. 10.1
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
6
Indenture dated as of ___________, 199_ between IDEX
Corporation, a Delaware corporation ("Company"), and [Name of Trustee], a
________________ ("Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Securities
issued under this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"Additional Amounts" means any additional amounts which are
required hereby or by any Security, under circumstances specified herein or
therein, to be paid by the Company in respect of certain taxes imposed on
Holders specified therein and which are owing to such Holders.
"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" (including, with correlative meanings, the terms "controlled by" and
"under common control with"), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such person, whether through the
ownership of voting securities or by agreement or otherwise.
"Agent" means any Registrar, Paying Agent or Service Agent.
"Authorized Newspaper" means a newspaper in an official
language of the country of publication customarily published at least once a day
for at least five days in each calendar week and of general circulation in the
place in connection with which the term is used. If it shall be impractical in
the opinion of the Trustee to make any publication of any notice required hereby
in an Authorized Newspaper, any publication or other notice in lieu thereof that
is made or given by the Trustee shall constitute a sufficient publication of
such notice.
"Bearer" means anyone in possession from time to time of a
Bearer Security.
"Bearer Security" means any Security, including any interest
coupon appertaining thereto, that does not provide for the identification of the
Holder thereof.
"Board of Directors" means the Board of Directors of the
Company or any duly authorized committee thereof.
7
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been adopted by
the Board of Directors or pursuant to authorization by the Board of Directors
and to be in full force and effect on the date of the certificate and delivered
to the Trustee.
"Business Day" means, unless otherwise provided by Board
Resolution, Officers' Certificate or supplemental indenture hereto for a
particular Series, any day except a Saturday, Sunday or a legal holiday in The
City of New York or the City of Chicago, Illinois on which banking institutions
are authorized or required by law, regulation or executive order to close.
"Company" means the party named as such above until a
successor replaces it and thereafter means the successor.
"Company Order" means a written order signed in the name of
the Company by two Officers, one of whom must be the Company's principal
executive officer, principal financial officer or principal accounting officer.
"Company Request" means a written request signed in the name
of the Company by its Chairman of the Board, its President or a Vice President,
and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered.
"Debt" of any person as of any date means, without
duplication, all indebtedness of such person in respect of borrowed money,
including all interest, fees and expenses owed in respect thereto (whether or
not the recourse of the lender is to the whole of the assets of such person or
only to a portion thereof), or evidenced by bonds, notes, debentures or similar
instruments.
"Default" means any event which is, or after notice or passage
of time would be, an Event of Default.
"Depository" means, with respect to the Securities of any
Series issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as Depository for such Series by the Company,
which Depository shall be a clearing agency which (i) credits beneficial
interests in such Global Securities to its participating organizations through a
computerized book-entry system and (ii) if located in the United States, is
registered under the Exchange Act; and if at any time there is more than one
such person, "Depository"
2
8
as used with respect to the Securities of any Series shall mean the Depository
with respect to the Securities of such Series.
"Discount Security" means any Security that provides for an
amount less than the stated principal amount thereof to be due and payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.2.
"Dollars" means the currency of The United States of America.
"ECU" means the European Currency Unit as determined by the
Commission of the European Union.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Foreign Currency" means any currency or currency unit issued
by a government other than the government of The United States of America.
"Foreign Government Obligations" means with respect to
Securities of any Series that are denominated in a Foreign Currency, (i) direct
obligations of the government that issued or caused to be issued such currency
for the payment of which obligations its full faith and credit is pledged or
(ii) obligations of a person controlled or supervised by or acting as an agency
or instrumentality of such government the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by such
government, which, in either case under clauses (i) or (ii), are not callable or
redeemable at the option of the issuer thereof.
"Global Security" or "Global Securities" means a Security or
Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Series of Securities, issued to the Depository for
such Series or its nominee, and registered in the name of such Depository or
nominee.
"Holder" or "Securityholder" means a person in whose name a
Security is registered or the holder of a Bearer Security.
"Indenture" means this Indenture as amended from time to time
and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
"interest" with respect to any Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
3
9
"Maturity," when used with respect to any Security or
installment of principal thereof or interest thereon, means the date on which
the principal of such Security or such installment of principal or interest
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, notice of
option to elect repayment or otherwise.
"Officer" means the Chairman of the Board, any President, any
Vice President, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers, one of whom must be the Company's principal executive officer,
principal financial officer or principal accounting officer.
"Opinion of Counsel" means a written opinion of legal counsel
who is acceptable to the Trustee. The counsel may be an employee of or counsel
to the Company.
"person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"principal" of a Security means the principal of the Security
plus, when appropriate, the premium, if any, on, and any Additional Amounts in
respect of, the Security.
"Responsible Officer" means any officer of the Trustee in its
Corporate Trust Office and also means, with respect to a particular corporate
trust matter, any other officer to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with a particular subject.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debentures, notes or other debt
instruments of the Company of any Series authenticated and delivered under this
Indenture.
"Series" or "Series of Securities" means each series of
debentures, notes or other debt instruments of the Company created pursuant to
Sections 2.1 and 2.2 hereof.
"Significant Subsidiary" means (i) any direct or indirect
Subsidiary of the Company that would be a "significant subsidiary" as defined in
Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities
Act of 1933, as amended, as such regulation is in effect on the date hereof, or
(ii) any group of direct or indirect Subsidiaries of
4
10
the Company that, taken together as a group, would be a "significant subsidiary"
as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to
the Securities Act of 1933, as amended, as such regulation is in effect on the
date hereof.
"Stated Maturity" when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" of any specified person means any corporation of
which at least a majority of the outstanding stock having by the terms thereof
ordinary voting power for the election of directors of such corporation
(irrespective of whether or not at the time stock of any other class or classes
of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned by
such person, or by one or more other Subsidiaries, or by such person and one or
more other Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
ss.ss. 77aaa-77bbbb) as in effect on the date of this Indenture; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "TIA" means, to the extent required by any such amendment, the Trust
Indenture Act 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.
"U.S. Government Obligations" means securities which are (i)
direct obligations of The United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of The United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by The United States of America, and which in the case of (i)
and (ii) are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such
5
11
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation evidenced by such depository receipt.
Section 1.2 Other Definitions.
TERM DEFINED IN
SECTION
"Bankruptcy Law" 6.1
"Custodian" 6.1
"Event of Default" 6.1
"Journal" 10.15
"Judgment Currency" 10.16
"Legal Holiday" 10.7
"mandatory sinking fund payment" 11.1
"Market Exchange Rate" 10.15
"New York Banking Day" 10.16
"optional sinking fund payment" 11.1
"Paying Agent" 2.4
"Registrar" 2.4
"Required Currency" 10.16
"Service Agent" 2.4
"successor person" 5.1
Section 1.3 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a
Securityholder.
"indenture to be qualified" means this
Indenture.
"indenture trustee" or "institutional
trustee" means the Trustee.
"obligor" on the indenture securities means
the Company and any successor obligor upon
the Securities.
6
12
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA and not otherwise defined herein are used herein as so defined.
Section 1.4 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles;
(c) references to "generally accepted accounting principles"
shall mean generally accepted accounting principles in effect as of the
time when and for the period as to which such accounting principles are
to be applied;
(d) "or" is not exclusive;
(e) words in the singular include the plural, and in the
plural include the singular; and
(f) provisions apply to successive events and
transactions.
ARTICLE II.
THE SECURITIES
Section 2.1 Issuable in Series.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more Series. All Securities of a Series shall be
identical except as may be set forth in a Board Resolution, a supplemental
indenture or an Officers' Certificate detailing the adoption of the terms
thereof pursuant to the authority granted under a Board Resolution. In the case
of Securities of a Series to be issued from time to time, the Board Resolution,
Officers' Certificate or supplemental indenture may provide for the method by
which specified terms (such as interest rate, maturity date, record date or date
from which interest shall accrue) are to be determined. Securities may differ
between Series in respect of any matters, provided that all Series of Securities
shall be equally and ratably entitled to the benefits of the Indenture.
7
13
Section 2.2 Establishment of Terms of Series of Securities.
At or prior to the issuance of any Securities within a Series,
the following shall be established (as to the Series generally, in the case of
Subsection 2.2.1, and either as to such Securities within the Series or as to
the Series generally, in the case of Subsections 2.2.2 through 2.2.22) by a
Board Resolution, a supplemental indenture or an Officers' Certificate pursuant
to authority granted under a Board Resolution:
2.2.1 the title of the Series (which shall distinguish the
Securities of that particular Series from the Securities of any other Series);
2.2.2 the price or prices (expressed as a percentage of the
principal amount thereof) at which the Securities of the Series will be issued;
2.2.3 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 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4 the date or dates on which the principal of the
Securities of the Series is payable;
2.2.5 the rate or rates (which may be fixed or variable)
per annum or, if applicable, the method used to determine such rate or rates
(including, but not limited to, any commodity, commodity index, stock exchange
index or financial index) at which the Securities of the Series shall bear
interest, if any, the date or dates from which such interest, if any, shall
accrue, the date or dates on which such interest, if any, shall commence and be
payable and any regular record date for the interest payable on any interest
payment date;
2.2.6 the place or places where the principal of, premium,
if any, and interest, if any, on the Securities of the Series shall be payable,
or the method of such payment, if by wire transfer, mail or other means;
2.2.7 if applicable, the period or periods within which,
the price or prices at which and the terms and conditions upon which the
Securities of the Series may be redeemed, in whole or in part, at the option of
the Company;
2.2.8 the obligation, if any, of the Company to redeem or
purchase the Securities of the Series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods within
which, the price or prices at
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which and the terms and conditions upon which Securities of the Series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
2.2.9 the dates, if any, on which and the price or prices
at which the Securities of the Series will be repurchased by the Company at the
option of the Holders thereof and other detailed terms and provisions of such
repurchase obligations;
2.2.10 if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which the Securities of the
Series shall be issuable;
2.2.11 the forms of the Securities of the Series in bearer
or fully registered form, and whether the Securities will be issuable as Global
Securities;
2.2.12 if other than the principal amount thereof, the
portion of the principal amount of the Securities of the Series that shall be
payable upon declaration of acceleration of the maturity thereof pursuant to
Section 6.2;
2.2.13 the currency of denomination of the Securities of the
Series, which may be Dollars or any Foreign Currency, including, but not limited
to, the ECU, and if such currency of denomination is a composite currency other
than the ECU, the agency or organization, if any, responsible for overseeing
such composite currency;
2.2.14 the designation of the currency, currencies or
currency units in which payment of the principal of, premium, if any, and
interest, if any, on the Securities of the Series will be made;
2.2.15 if payments of principal of, premium, if any, or
interest, if any, on the Securities of the Series are to be made in one or more
currencies or currency units other than that or those in which such Securities
are denominated, the manner in which the exchange rate with respect to such
payments will be determined;
2.2.16 the manner in which the amounts of payment of
principal of, premium, if any, or interest, if any, on the Securities of the
Series will be determined, if such amounts may be determined by reference to an
index based on a currency or currencies other than that in which the Securities
are denominated or designated to be payable or by reference to a commodity,
commodity index, stock exchange index or financial index;
2.2.17 the provisions, if any, relating to any security
provided for the Securities of the Series;
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2.2.18 the provisions, if any, relating to the subordination
the Securities of the Series;
2.2.19 the provisions, if any, relating to restrictions on
transfer of the Securities of the Series;
2.2.20 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 6.2;
2.2.21 any addition to or change in the covenants set forth
in Articles IV or V which applies to Securities of the Series;
2.2.22 any other terms of the Securities of the Series
(which terms shall not be inconsistent with the provisions of this Indenture,
except as permitted by Section 9.1, but which may modify or delete any provision
of this Indenture insofar as it applies to such Series); and
2.2.23 the Depository, if any, and any interest rate
calculation agents, exchange rate calculation agents or other agents with
respect to Securities of such Series if other than those appointed herein.
All Securities of any one Series need not be issued at the
same time and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to the Board Resolution, supplemental
indenture or Officers' Certificate referred to above, and the authorized
principal amount of any Series may not be increased to provide for issuances of
additional Securities of such Series, unless otherwise provided in such Board
Resolution, supplemental indenture or Officers' Certificate.
Section 2.3 Execution and Authentication.
Two Officers shall sign the Securities for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent. The signature shall
be conclusive evidence that the Security has been authenticated under this
Indenture.
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The Trustee shall at any time, and from time to time,
authenticate Securities for original issue in the principal amount provided in
the Board Resolution, supplemental indenture hereto or Officers' Certificate,
upon receipt by the Trustee of a Company Order. Such Company Order may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing. Each Security shall be dated the date of its
authentication unless otherwise provided by a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate.
The aggregate principal amount of Securities of any Series
outstanding at any time may not exceed any limit upon the maximum principal
amount for such Series set forth in the Board Resolution, supplemental indenture
hereto or Officers' Certificate delivered pursuant to Section 2.2, except as
provided in Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee
shall have received and (subject to Section 7.2) shall be fully protected in
relying on: (a) the Board Resolution, supplemental indenture hereto or Officers'
Certificate establishing the form of the Securities of that Series or of
Securities within that Series and the terms of the Securities of that Series or
of Securities within that Series, (b) an Officers' Certificate complying with
Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to authenticate
and deliver any Securities of such Series: (a) if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken; or (b) if the
Trustee in good faith by its board of directors or trustees, executive committee
or a trust committee of directors and/or vice-presidents shall determine that
such action would expose the Trustee to personal liability to Holders of any
then outstanding Series of Securities.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
Section 2.4 Registrar and Paying Agent.
The Company shall maintain, with respect to each Series of
Securities, at the place or places specified with respect to such Series
pursuant to Section 2.2, an office or agency where Securities of such Series may
be presented or surrendered for payment ("Paying Agent"), where Securities of
such Series may be surrendered for registration of transfer or exchange
("Registrar") and where notices and demands to or upon the Company in respect of
the Securities
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of such Series and this Indenture may be served ("Service Agent"). The Registrar
shall keep a register with respect to each Series of Securities and their
transfer and exchange. The Company will give prompt written notice to the
Trustee of the name and address, and any change in the name or address, of each
Registrar, Paying Agent or Service Agent. If at any time the Company shall fail
to maintain any such required Registrar, Paying Agent or Service Agent or shall
fail to furnish the Trustee with the name and address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
co-registrars, additional paying agents or additional service agents 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
obligations to maintain a Registrar, Paying Agent and Service Agent in each
place so specified pursuant to Section 2.2 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 name or address of any such
co-registrar, additional paying agent or additional service agent. The term
"Registrar" includes any co-registrar; the term "Paying Agent" includes any
additional paying agent; and the term "Service Agent" includes any additional
service agent.
The Company hereby appoints the Trustee the initial Registrar,
Paying Agent and Service Agent for each Series unless another Registrar, Paying
Agent or Service Agent, as the case may be, is appointed prior to the time
Securities of that Series are first issued.
Section 2.5 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust, for the
benefit of Securityholders of any Series of Securities, or the Trustee, all
money held by the Paying Agent for the payment of principal of or interest on
the Series of Securities, and will notify the Trustee of any default by the
Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary) shall have no further liability for the money.
If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold
in a separate trust fund for the benefit of Securityholders of any Series of
Securities all money held by it as Paying Agent.
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Section 2.6 Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Securityholders of each Series of Securities issued in fully
registered form and shall otherwise comply with TIA ss. 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least ten days
before each interest payment date and at such other times as the Trustee may
request in writing a list, in such form and as of such date as the Trustee may
reasonably require, of the names and addresses of Securityholders of each Series
of Securities issued in fully registered form.
Section 2.7 Transfer and Exchange.
Where Securities of a Series are presented to the Registrar or
a co-registrar with a request to register a transfer or to exchange them for an
equal principal amount of Securities of the same Series, the Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the
Trustee shall authenticate Securities at the Registrar's request. No service
charge shall be made for any registration of transfer or exchange (except as
otherwise expressly permitted herein), but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or
9.6).
Neither the Company nor the Registrar shall be required to (a)
issue, register the transfer of, or exchange Securities of any Series for the
period beginning at the opening of business fifteen days immediately preceding
the mailing of a notice of redemption of Securities of that Series selected for
redemption and ending at the close of business on the day of such mailing, (b)
register the transfer of or exchange Securities of any Series selected, called
or being called for redemption as a whole or the portion being redeemed of any
such Securities selected, called or being called for redemption in part, or (c)
transfer, register the transfer of, or exchange Securities of any Series that
contain transfer restrictions, unless and until all such restrictions are
removed or satisfied.
Section 2.8 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.
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If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same Series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that Series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.9 Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest on a Global Security
effected by the Trustee in accordance with the provisions hereof and those
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases
to be outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds on the Maturity of Securities of a Series
money sufficient to pay such Securities
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payable on that date, then on and after that date such Securities of the Series
cease to be outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the
Company or an Affiliate holds the Security.
In determining whether the Holders of the requisite principal
amount of outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of a
Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 6.2.
Section 2.10 Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities of a Series have concurred in any request, demand,
authorization, direction, notice, consent or waiver, Securities of a Series
owned by the Company or an Affiliate shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities of a Series that the Trustee knows are so owned shall be so
disregarded.
Section 2.11 Temporary Securities.
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities upon
a Company Order. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee upon request shall authenticate definitive
Securities of the same Series and date of maturity in exchange for temporary
Securities. Until so exchanged, temporary securities shall have the same rights
under this Indenture as the definitive Securities.
Section 2.12 Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange or payment. The Trustee shall cancel all Securities surrendered for
transfer, exchange, payment, replacement or cancellation and shall destroy such
canceled Securities (subject to the record retention requirement of the Exchange
Act) and deliver a certificate of such destruction to the Company, unless the
Company otherwise directs. The
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Company may not issue new Securities to replace Securities that it has paid or
delivered to the Trustee for cancellation.
Section 2.13 Defaulted Interest.
If the Company defaults in a payment of interest on a Series
of Securities, it shall pay the defaulted interest, plus, to the extent
permitted by law, any interest payable on the defaulted interest, to the persons
who are Securityholders of the Series on a subsequent special record date. The
Company shall fix the record date and payment date. At least 30 days before the
record date, the Company shall mail to the Trustee and to each Securityholder of
the Series a notice that states the record date, the payment date and the amount
of interest to be paid. The Company may pay defaulted interest in any other
lawful manner.
Section 2.14 Global Securities.
2.14.1 Terms of Securities. A Board Resolution, a
supplemental indenture hereto or an Officers' Certificate shall establish
whether the Securities of a Series shall be issued in whole or in part in the
form of one or more Global Securities and the Depository for such Global
Security or Securities.
2.14.2 Transfer and Exchange. Notwithstanding any provisions
to the contrary contained in Section 2.7 of the Indenture and in addition
thereto, any Global Security held by a Depository in the United States shall be
exchangeable pursuant to Section 2.7 of the Indenture for Securities registered
in the names of Holders other than the Depository for such Security or its
nominee only if (i) such Depository notifies the Company that it is unwilling or
unable to continue as Depository for such Global Security or if at any time such
Depository ceases to be a clearing agency registered under the Exchange Act,
and, in either case, the Company fails to appoint a successor Depository within
90 days of such event, (ii) the Company executes and delivers to the Trustee an
Officers' Certificate to the effect that such Global Security shall be so
exchangeable or (iii) an Event of Default with respect to the Securities
represented by such Global Security shall have happened and be continuing. Any
Global Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Securities registered in such names as the Depository shall
direct in writing in an aggregate principal amount equal to the principal amount
of the Global Security with like tenor and terms.
Except as provided in this Section 2.14.2, a Global Security
held by a Depository in the United States may not be transferred except as a
whole by the Depository with respect to such Global Security to a nominee of
such
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Depository, by a nominee of such Depository to such Depository or another
nominee of such Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such a successor Depository.
2.14.3 Legend. Any Global Security issued hereunder to a
Depository in the United States shall bear a legend in substantially the
following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of the
Depository or a nominee of the Depository. Unless this certificate is presented
by an authorized representative of the Depository to the Company or its agent
for registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of the Depository (and any payment is made to Cede &
Co. or to such other entity as is requested by an authorized representative of
the Depository), any transfer, pledge or other use hereof for value or otherwise
by or to any person is wrongful inasmuch as the registered owner hereof, Cede &
Co., has an interest herein."
2.14.4 Acts of Holders. The Depository, as a Holder, may
appoint agents and otherwise authorize participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action which
a Holder is entitled to give or take under the Indenture.
2.14.5 Payments. Notwithstanding the other provisions of
this Indenture, unless otherwise specified as contemplated by Section 2.2,
payment of the principal of, premium, if any, and interest, if any, on any
Global Security shall be made to the Holder thereof.
2.14.6 Consents, Declaration and Directions. Except as
provided in Section 2.14.5, the Company, the Trustee and any Agent shall treat a
person as the Holder of such principal amount of outstanding Securities of such
Series represented by a Global Security as shall be specified in a written
statement of the Depository with respect to such Global Security, for purposes
of obtaining any consents, declarations, waivers or directions required to be
given by the Holders pursuant to this Indenture.
Section 2.15 CUSIP, ISIN and Common Code Numbers.
The Company in issuing the Securities may use "CUSIP," "ISIN"
or "Common Code" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP," "ISIN" or "Common Code" 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
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may be placed only on the other elements of identification printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE III.
REDEMPTION
Section 3.1 Notice to Trustee.
The Company may, with respect to any Series of Securities,
reserve the right to redeem and pay the Series of Securities or may covenant to
redeem and pay the Series of Securities or any part thereof prior to the Stated
Maturity thereof at such time and on such terms as provided for in such
Securities. If a Series of Securities is redeemable and the Company wants or is
obligated to redeem prior to the Stated Maturity thereof all or part of the
Series of Securities pursuant to the terms of such Securities, it shall notify
the Trustee of the redemption date and the principal amount of Series of
Securities to be redeemed. The Company shall give the notice at least 45 days
before the redemption date (or such shorter notice as may be acceptable to the
Trustee).
Section 3.2 Selection of Securities to be Redeemed.
Unless otherwise indicated for a particular Series by a Board
Resolution, a supplemental indenture or an Officers' Certificate, if less than
all the Securities of a Series are to be redeemed, the Trustee shall select the
Securities of the Series to be redeemed in any manner that the Trustee deems
fair and appropriate. The Trustee shall make the selection from Securities of
the Series outstanding not previously called for redemption. The Trustee may
select for redemption portions of the principal of Securities of the Series that
have denominations larger than $1,000. Securities of the Series and portions of
them it selects shall be in amounts of $1,000 or whole multiples of $1,000 or,
with respect to Securities of any Series issuable in other denominations
pursuant to Section 2.2.10, the minimum principal denomination for each Series
and integral multiples thereof. Provisions of this Indenture that apply to
Securities of a Series called for redemption also apply to portions of
Securities of that Series called for redemption.
Section 3.3 Notice of Redemption.
Unless otherwise indicated for a particular Series by Board
Resolution, a supplemental indenture hereto or an Officers' Certificate, at
least 30 days but not more than 60 days before a redemption date, the Company
shall mail a notice of redemption by first-class mail to each Holder whose
Securities are to be redeemed and if any Bearer Securities are outstanding,
publish on one occasion a notice in an Authorized Newspaper.
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The notice shall identify the Securities of the Series to be
redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) that Securities of the Series called for redemption must
be surrendered to the Paying Agent to collect the redemption price;
(e) that interest on Securities of the Series called for
redemption ceases to accrue on and after the redemption date; and
(f) any other information as may be required by the terms of
the particular Series or the Securities of a Series being redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
Section 3.4 Effect of Notice of Redemption.
Once notice of redemption is mailed or published as provided
in Section 3.3, Securities of a Series called for redemption become due and
payable on the redemption date and at the redemption price. A notice of
redemption may not be conditional. Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price plus accrued interest to the
redemption date.
Section 3.5 Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit
with the Paying Agent money sufficient to pay the redemption price of and
accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the
Trustee shall authenticate for the Holder a new Security of the same Series and
the same maturity equal in principal amount to the unredeemed portion of the
Security surrendered.
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ARTICLE IV.
COVENANTS
Section 4.1 Payment of Principal and Interest.
The Company covenants and agrees for the benefit of the
Holders of each Series of Securities that it will duly and punctually pay the
principal of and interest, if any, on the Securities of that Series in
accordance with the terms of such Securities and this Indenture.
Section 4.2 SEC Reports.
The Company shall deliver to the Trustee within 15 days after
it files them with the SEC copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The
Company also shall comply with the other provisions of TIA ss. 314(a).
Section 4.3 Compliance Certificate.
The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year of the Company, an Officers' Certificate stating
that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his knowledge the Company has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he may have knowledge).
The Company will, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such Default or
Event of Default and what action the Company is taking or proposes to take with
respect thereto.
Section 4.4 Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in
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force, which may affect the covenants or the performance of this Indenture or
the Securities; and the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not, by resort to any such law, 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 has been enacted.
Section 4.5 Corporate Existence.
Subject to Article V, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each Significant
Subsidiary in accordance with the respective organizational documents of each
Significant Subsidiary and the rights (charter and statutory), licenses and
franchises of the Company and its Significant Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any Significant
Subsidiary, 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
its Subsidiaries taken as a whole and that the loss thereof is not adverse in
any material respect to the Holders.
Section 4.6 Taxes.
The Company shall, and shall cause each of its Significant
Subsidiaries to, pay prior to delinquency all taxes, assessments and
governmental levies, except as contested in good faith and by appropriate
proceedings.
ARTICLE V.
SUCCESSORS
Section 5.1 When Company May Merge, Etc.
The Company shall not consolidate with or merge into, or
convey, transfer or lease all or substantially all of its assets to, any person
(a "successor person"), and may not permit any person to merge into, or convey,
transfer or lease its assets substantially as an entirety to, the Company,
unless:
(a) the successor person (if any) is a corporation,
partnership, trust or other entity organized and validly existing under
the laws of any U.S. domestic jurisdiction and expressly assumes the
Company's obligations on the Securities and under this Indenture and
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(b) immediately after giving effect to the transaction, no
Default or Event of Default, shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate to the
foregoing effect and an Opinion of Counsel stating that the proposed transaction
and such supplemental indenture comply with this Indenture.
Section 5.2 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company in accordance with Section 5.1, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
lease, conveyance or other disposition 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 has been named
as the Company herein; provided, however, that the predecessor Company in the
case of a sale, lease, conveyance or other disposition shall not be released
from the obligation to pay the principal of and interest, if any, on the
Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1 Events of Default.
"Event of Default," wherever used herein with respect to
Securities of any Series, means any one of the following events, unless in the
establishing Board Resolution, supplemental indenture or Officers' Certificate,
it is provided that such Series shall not have the benefit of said Event of
Default:
(a) default in the payment of any interest on any Security of
that Series when it becomes due and payable, and continuance of such
default for a period of 30 days (unless the entire amount of such
payment is deposited by the Company with the Trustee or with a Paying
Agent prior to the expiration of such period of 30 days); or
(b) default in the payment of the principal of, or premium, if
any, on, any Security of that Series at its Maturity; or
(c) default in the deposit of any sinking fund payment, when
and as due in respect of any Security of that Series; or
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(d) default in the performance or breach of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty that has been included in this Indenture solely for the
benefit of Series of Securities other than that Series), which default
continues uncured for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of not less than a majority
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
(e) a default under any Debt of the Company (including a
default with respect to Securities of any Series other than that
Series) or any Subsidiary, whether such Debt now exists or shall
hereafter be created, if (A) such default results from the failure to
pay any such Debt when it becomes due, (B) the principal amount of such
Debt, together with the principal amount of any other such Debt in
default for failure to pay principal at stated final maturity or the
maturity of which has been so accelerated, aggregates $____________ or
more at any one time outstanding, and (C) such Debt is not discharged
or such acceleration is not rescinded or annulled within 10 days after
written notice to the Company by the holder or holders of such Debt in
the manner provided for in the applicable debt instrument; or
(f) the Company or any of its Significant Subsidiaries
pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for
relief against it in an involuntary case,
(iii) consents to the appointment of a Custodian of
it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit
of its creditors, or
(v) generally is unable to pay its debts as the
same become due; or
(vi) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(vii) is for relief against the Company or any of its
Significant Subsidiaries in an involuntary case,
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(viii) appoints a Custodian of the Company or any of
its Significant Subsidiaries or for all or substantially all
of its property, or
(ix) orders the liquidation of the Company or any
of its Significant Subsidiaries,
and the order or decree remains unstayed and in effect for 60 days; or
(g) any other Event of Default provided with respect to
Securities of that Series, which is specified in a Board Resolution, a
supplemental indenture hereto or an Officers' Certificate, in
accordance with Section 2.2.18.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or State law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Section 6.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any
Series at the time outstanding occurs and is continuing (other than an Event of
Default referred to in Section 6.1(f) or (g)) then in every such case the
Trustee or the Holders of not less than a majority in principal amount of the
outstanding Securities of that Series may declare the principal amount (or, if
any Securities of that Series are Discount Securities, such portion of the
principal amount as may be specified in the terms of such Securities) of and
accrued and unpaid interest, if any, on all of the Securities of that Series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) and accrued and unpaid interest, if any, shall
become immediately due and payable. If an Event of Default specified in Section
6.1(f) or (g) shall occur, the principal amount (or specified amount) of and
accrued and unpaid interest, if any, on all outstanding Securities shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with
respect to 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:
(a) the Company has paid or deposited with the Trustee a
sum sufficient to pay
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(i) all overdue interest, if any, on all
Securities of that Series,
(ii) the principal of any Securities of that Series
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities,
(iii) to the extent that payment of such interest is
lawful, interest upon any overdue principal and overdue
interest at the rate or rates prescribed therefor in such
Securities, and
(iv) 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
(b) all Events of Default with respect to Securities of that
Series, other than the non-payment of the principal of Securities of
that Series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or
impair any right consequent thereon.
Section 6.3 Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of principal of any
Security at the Maturity thereof, or
(c) default is made in the deposit of any sinking fund payment
when and as due by the terms of a Security,
then, 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 interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal or any
overdue interest, at the rate or rates prescribed therefor in such
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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 deemed 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 any Securities of any
Series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such Series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same,
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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 7.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 6.5 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 6.6 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 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 7.7; and
Second: To the payment of the amounts then due and unpaid for
principal of 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 (subject to any subordination provisions applicable to the
Securities of any Series), according to the amounts due and payable on such
Securities for principal and interest, respectively; and
Third: To the Company.
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Section 6.7 Limitation on Suits.
No Holder of any Security of any Series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that Series;
(b) the Holders of not less than a majority in principal
amount of the outstanding Securities of that Series shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the outstanding Securities of that
Series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 6.8 Unconditional Right of Holders to Receive Principal
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, premium, if any, and
interest, if any, on, such Security on the Stated Maturity or 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.
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Section 6.9 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 6.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, 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 6.11 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 6.12 Control by Holders.
The Holders of a majority in principal amount of the
outstanding Securities of any Series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such Series, provided that
(a) such direction shall not be in conflict with any rule
of law or with this Indenture,
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(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer of the Trustee,
determine that the proceeding so directed would involve the Trustee in
personal liability.
Section 6.13 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 in the payment of the principal
of, premium, if any, or interest, if any, on, any Security of such Series or, if
applicable, in respect of a covenant or provision which cannot be modified or
amended without the consent of the Holder of each outstanding Security of such
Series affected (provided, however, that the Holders of a majority in principal
amount of the outstanding Securities of any Series may rescind an acceleration
and its consequences, including any related payment default that resulted from
such acceleration). 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 6.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the outstanding Securities of any Series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or interest on
any Security on or after the Stated Maturity or Stated Maturities expressed in
such Security (or, in the case of redemption, on the redemption date).
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ARTICLE VII.
TRUSTEE
Section 7.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that
are specifically set forth in this Indenture and no others.
(ii) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon Officers' Certificates or Opinions of Counsel
furnished to the Trustee and conforming to the requirements of
this Indenture; however, in the case of any such Officers'
Certificates or Opinions of Counsel which by any provisions
hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such Officers' Certificates
and Opinions of Counsel to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of
paragraph (b) of this Section.
(ii) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it is proved that the Trustee was negligent in ascertaining
the pertinent facts.
(iii) The Trustee shall not be liable with respect to
any action taken, suffered or omitted to be taken by it with
respect to Securities of any Series in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the outstanding Securities of such Series
relating to the time, method and place of conducting any
proceeding for any remedy available to the
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Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities
of such Series.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraph (a), (b) and (c) of this
Section.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it against
any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to risk its own funds or otherwise incur any financial liability in the
performance of any of its duties, 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 is
not reasonably assured to it.
(h) The Paying Agent, the Registrar and any authenticating
agent shall be entitled to the protections, immunities and standard of
care as are set forth in paragraphs (a), (b) and (c) of this Section
with respect to the Trustee.
Section 7.2 Rights of Trustee.
(a) The Trustee may rely on and shall be protected in acting
or refraining from acting upon any document believed by it to be
genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed
with due care. No Depository shall be deemed an agent of the Trustee
and the Trustee shall not be responsible for any act or omission by any
Depository.
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(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or
within its rights or powers.
(e) The Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities 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.
Section 7.3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee is also subject to Sections 7.10
and 7.11.
Section 7.4 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for
the Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities other than its authentication.
Section 7.5 Notice of Defaults.
If a Default or Event of Default occurs and is continuing with
respect to the Securities of any Series and if it is known to a Responsible
Officer of the Trustee, the Trustee shall mail to each Securityholder of the
Securities of that Series and, if any Bearer Securities are outstanding, publish
on one occasion in an Authorized Newspaper, notice of a Default or Event of
Default within 90 days after it occurs or, if later, after a Responsible Officer
of the Trustee has knowledge of such Default or Event of Default. Except in the
case of a Default or Event of Default in payment of principal of or interest on
any Security of any Series, the Trustee may withhold the notice if and so long
as its corporate trust committee or a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of
Securityholders of that Series.
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Section 7.6 Reports by Trustee to Holders.
Within 60 days after May 15 in each year, the Trustee shall
transmit by mail to all Securityholders, as their names and addresses appear on
the register kept by the Registrar and, if any Bearer Securities are
outstanding, publish once in an Authorized Newspaper, a brief report dated as of
such May 15, in accordance with, and to the extent required under, TIA ss. 313.
A copy of each report at the time of its mailing to
Securityholders of any Series shall be filed with the SEC and each stock
exchange on which the Securities of that Series are listed. The Company shall
promptly notify the Trustee when Securities of any Series are listed on any
stock exchange.
Section 7.7 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it. Such expenses shall include the
reasonable compensation and expenses of the Trustee's agents and counsel.
Except as set forth in the next paragraph, the Company shall
indemnify the Trustee against any loss, liability or expense (including the cost
of defending itself) incurred by it in the performance of its duties under this
Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld. This indemnification shall
apply to officers, directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee or by any officer,
director, employee, shareholder or agent of the Trustee through negligence or
bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities of any Series on all money
or property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Securities of that Series.
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When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(f) or (g) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.8 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign with respect to the Securities of one
or more Series by so notifying the Company. The Holders of a majority in
principal amount of the Securities of any Series may remove the Trustee with
respect to that Series by so notifying the Trustee and the Company. The Company
may remove the Trustee with respect to Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee with respect to the Securities of any
one or more Series does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of at least 10% in principal amount of the Securities of the applicable Series
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee with respect to the Securities of any one or
more Series fails to comply with Section 7.10, any Securityholder of the
applicable Series may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
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A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee subject to the lien provided for in Section 7.7, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
with respect to each Series of Securities for which it is acting as Trustee
under this Indenture. A successor Trustee shall mail a notice of its succession
to each Securityholder of each such Series and, if any Bearer Securities are
outstanding, publish such notice on one occasion in an Authorized Newspaper.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the
Company's obligations under Section 7.7 hereof shall continue for the benefit of
the retiring trustee with respect to expenses and liabilities incurred by it
prior to such replacement.
Section 7.9 Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee shall always have a
combined capital and surplus of at least $25,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
ss. 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Order cease to be of further
effect (except as hereinafter provided in this Section 8.1), and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
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(a) either
(i) all Securities theretofore authenticated and
delivered (other than Securities that have been destroyed,
lost or stolen and that have been replaced or paid) have been
delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore
delivered to the Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at
their Stated Maturity within one year, or
(3) are to be called for redemption
within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the
Company, or
(4) are deemed paid and
discharged pursuant to Section 8.3, as
applicable;
and the Company, in the case of (1), (2) or (3) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust an amount sufficient
for the purpose of paying and discharging the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of Securities
which have become due and payable on or prior to the date of such deposit) or to
the Stated Maturity or redemption date, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 7.7, and,
if money shall have been deposited with the Trustee pursuant to clause (a) of
this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.1 8.2 and 8.5 shall
survive.
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Section 8.2 Application of Trust Funds; Indemnification.
(a) Subject to the provisions of Section 8.5, all money
deposited with the Trustee pursuant to Section 8.1, all money and U.S.
Government Obligations or Foreign Government Obligations deposited with
the Trustee pursuant to Section 8.3 or 8.4 and all money received by
the Trustee in respect of U.S. Government Obligations or Foreign
Government Obligations deposited with the Trustee pursuant to Section
8.3 or 8.4, 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 interest for
whose payment such money has been deposited with or received by the
Trustee or to make mandatory sinking fund payments or analogous
payments as contemplated by Sections 8.3 or 8.4.
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against
U.S. Government Obligations or Foreign Government Obligations deposited
pursuant to Sections 8.3 or 8.4 or the interest and principal received
in respect of such obligations other than any payable by or on behalf
of Holders.
(c) The Trustee shall deliver or pay to the Company from time
to time upon Company Request any U.S. Government Obligations or Foreign
Government Obligations or money held by it as provided in Sections 8.3
or 8.4 which, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, are then in excess of
the amount thereof which then would have been required to be deposited
for the purpose for which such U.S. Government Obligations or Foreign
Government Obligations or money were deposited or received. This
provision shall not authorize the sale by the Trustee of any U.S.
Government Obligations or Foreign Government Obligations held under
this Indenture.
Section 8.3 Legal Defeasance of Securities of any Series.
Unless this Section 8.3 is otherwise specified, pursuant to
Section 2.2.20, to be inapplicable to Securities of any Series, the Company
shall be deemed to have paid and discharged the entire indebtedness on all the
outstanding Securities of such Series on the 91st day after the date of the
deposit referred to in subparagraph (d) hereof, and the provisions of this
Indenture, as it relates to such outstanding Securities of such Series, shall no
longer be in effect (and the Trustee, at the expense of the Company, shall, at
Company Request, execute proper instruments acknowledging the same), except as
to:
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(a) the rights of Holders of Securities of such Series to
receive, from the trust funds described in subparagraph (d) hereof, (i)
payment of the principal of and each installment of principal of and
interest on the outstanding Securities of such Series on the Stated
Maturity of such principal or installment of principal or interest and
(ii) the benefit of any mandatory sinking fund payments applicable to
the Securities of such Series on the day on which such payments are due
and payable in accordance with the terms of this Indenture and the
Securities of such Series;
(b) the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and
8.5; and
(c) the rights, powers, trust and immunities of the Trustee
hereunder; provided that, the following conditions shall have been
satisfied:
(d) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee 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 such Securities (i)
in the case of Securities of such Series denominated in Dollars, cash
in Dollars (or such other money or currencies as shall then be legal
tender in the United States) and/or U.S. Government Obligations, or
(ii) in the case of Securities of such Series denominated in a Foreign
Currency (other than a composite currency), money and/or Foreign
Government Obligations, which through the payment of interest and
principal in respect thereof, in accordance with their terms, will
provide (and without reinvestment and assuming no tax liability will be
imposed on such Trustee), not later than one day before the due date of
any payment of money, an amount in cash, 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 each installment of principal (including mandatory
sinking fund or analogous payments) of and interest, if any, on all the
Securities of such Series on the dates such installments of interest or
principal are due;
(e) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(f) no Default or Event of Default with respect to the
Securities of such Series shall have occurred and be continuing on the
date of such deposit or during the period ending on the 91st day after
such date;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel to the effect that (i)
the Company has received from, or there
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has been published by, the Internal Revenue Service a ruling, or (ii)
since the date of execution 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 of Counsel shall confirm that, the
Holders of the Securities of such Series will not recognize income,
gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal income
tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit, defeasance and discharge had
not occurred;
(h) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of the Securities of
such Series over any other creditors of the company or with the intent
of defeating, hindering, delaying or defrauding any other creditors of
the Company;
(i) such deposit shall not result in the trust arising from
such deposit constituting an investment company (as defined in the
Investment Company Act of 1940, as amended), or such trust shall be
qualified under such Act or exempt from regulation thereunder; and
(j) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this Section have been complied with.
Section 8.4 Covenant Defeasance.
Unless this Section 8.4 is otherwise specified pursuant to
Section 2.2.20 to be inapplicable to Securities of any Series, on and after the
91st day after the date of the deposit referred to in subparagraph (a) hereof,
the Company may omit to comply with any term, provision or condition set forth
under Sections 4.2, 4.3, 4.4, 4.5, 4.6, and 5.1 as well as any additional
covenants contained in a supplemental indenture hereto for a particular Series
of Securities or a Board Resolution or an Officers' Certificate delivered
pursuant to Section 2.2.20 (and the failure to comply with any such covenants
shall not constitute a Default or Event of Default under Section 6.1) and the
occurrence of any event described in clause (e) of Section 6.1 shall not
constitute a Default or Event of Default hereunder, with respect to the
Securities of such Series, provided that the following conditions shall have
been satisfied:
(a) With reference to this Section 8.4, the Company has
deposited or caused to be irrevocably deposited (except as provided in
Section 8.2(c)) with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of
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the Holders of such Securities (i) in the case of Securities of such
Series denominated in Dollars, cash in Dollars (or such other money or
currencies as shall then be legal tender in the United States) and/or
U.S. Government Obligations, or (ii) in the case of Securities of such
Series denominated in a Foreign Currency (other than a composite
currency), money and/or Foreign Government Obligations, which through
the payment of interest and principal in respect thereof, in accordance
with their terms, will provide (and without reinvestment and assuming
no tax liability will be imposed on such Trustee), not later than one
day before the due date of any payment of money, an amount in cash,
sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, to pay principal,
premium, if any, and interest, if any, on and any mandatory sinking
fund in respect of the Securities of such Series on the dates such
installments of interest or principal are due;
(b) Such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(c) No Default or Event of Default with respect to the
Securities of such Series shall have occurred and be continuing on the
date of such deposit or during the period ending on the 91st day after
such date;
(d) the Company shall have delivered to the Trustee an Opinion
of Counsel confirming that Holders of the Securities of such Series
will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit and defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such deposit and defeasance
had not occurred;
(e) the Company shall have delivered to the Trustee an
Officers' Certificate stating the deposit was not made by the Company
with the intent of preferring the Holders of the Securities of such
Series over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the
Company; and
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance
contemplated by this Section have been complied with.
Section 8.5 Repayment to Company.
The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal and interest that
remains unclaimed for two
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years. After that, Securityholders entitled to the money must look to the
Company for payment as general creditors unless an applicable abandoned property
law designates another person.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1 Without Consent of Holders.
The Company and the Trustee may amend or supplement this
Indenture or the Securities of one or more Series without the consent of any
Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article V;
(c) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(d) to make any change that does not adversely affect the
rights of any Securityholder;
(e) to provide for the issuance of and establish the form and
terms and conditions of Securities of any Series as permitted by this
Indenture;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more Series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(g) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA.
Section 9.2 With Consent of Holders.
Unless otherwise specified with respect to any Series of
Securities, the Company and the Trustee may enter into a supplemental indenture
with the written consent of the Holders of at least a majority in principal
amount of the outstanding Securities of each Series affected by such
supplemental indenture (including consents obtained in connection with a tender
offer or exchange offer for the Securities of such Series), for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any
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supplemental indenture or of modifying in any manner the rights of the
Securityholders of each such Series. Except as provided in Section 6.13, the
Holders of at least a majority in principal amount of the outstanding Securities
of each Series affected by such waiver by notice to the Trustee (including
consents obtained in connection with a tender offer or exchange offer for the
Securities of such Series) may waive compliance by the Company with any
provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary for the consent of the Holders of
Securities under this Section 9.2 to approve the particular form of any proposed
supplemental indenture or waiver, but it shall be sufficient if such consent
approves the substance thereof. After a supplemental indenture or waiver under
this section becomes effective, the Company shall mail to the Holders of
Securities affected thereby and, if any Bearer Securities affected thereby are
outstanding, publish on one occasion in an Authorized Newspaper, a notice
briefly describing the supplemental indenture or waiver. Any failure by the
Company to mail or publish such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture or waiver.
Section 9.3 Limitations.
Without the consent of each Securityholder affected, an
amendment or waiver may not:
(a) change the amount of Securities whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of
interest (including default interest) on any Security;
(c) reduce the principal of, or premium, if any, on, or change
the Stated Maturity of, any Security or reduce the amount of, or
postpone the date fixed for, the payment of any sinking fund or
analogous obligation;
(d) reduce the principal amount of Discount Securities payable
upon acceleration of the maturity thereof;
(e) waive a Default or Event of Default in the payment of the
principal of, premium, if any, or interest, if any, on, any Security
(except a rescission of acceleration of the Securities of any Series by
the Holders of at least a majority in principal amount of the
outstanding Securities of such Series and a waiver of the payment
default that resulted from such acceleration);
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(f) make the principal of, premium, if any, or interest, if
any, on, any Security payable in any currency other than that stated in
the Security;
(g) make any change in Sections 6.8, 6.13, 9.3 (this
sentence), 10.15 or 10.16; or
(h) waive a redemption payment with respect to any Security or
change any of the provisions with respect to the redemption of any
Securities.
Section 9.4 Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of one or
more Series shall be set forth in a supplemental indenture hereto that complies
with the TIA as then in effect.
Section 9.5 Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to
it by a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of a Security if the Trustee receives
the notice of revocation before the date the amendment or waiver becomes
effective.
Any amendment or waiver once effective shall bind every
Securityholder of each Series affected by such amendment or waiver unless it is
of the type described in any of clauses (a) through (g) of Section 9.3. In that
case, the amendment or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security.
Section 9.6 Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an
amendment or waiver on any Security of any Series thereafter authenticated. The
Company in exchange for Securities of that Series may issue and the Trustee
shall authenticate upon request new Securities of that Series that reflect the
amendment or waiver.
Section 9.7 Trustee Protected.
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 7.1) shall be fully
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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 shall sign all supplemental indentures, except that the Trustee need not
sign any supplemental indenture that adversely affects its rights.
ARTICLE X.
MISCELLANEOUS
Section 10.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required or deemed to be included in
this Indenture by the TIA, such required or deemed provision shall control.
Section 10.2 Notices.
Any notice or communication by the Company or the Trustee to
the other is duly given if in writing and delivered in person or mailed by
first-class mail:
if to the Company:
IDEX Corporation
630 Dundee Road
Northbrook, Illinois 60062
(847) 498-7070
Attention: Wayne P. Sayatovic
if to the Trustee:
[Name of Trustee]
[Address]
_________________________
_________________________
Attention: ______________
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication to a Securityholder shall be
mailed by first-class mail to his address shown on the register kept by the
Registrar and, if any Bearer Securities are outstanding, published in an
Authorized Newspaper. Failure to mail a notice or communication
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to a Securityholder of any Series or any defect in it shall not affect its
sufficiency with respect to other Securityholders of that or any other Series.
If a notice or communication is mailed or published in the
manner provided above, within the time prescribed, it is duly given, whether or
not the Securityholder receives it.
If the Company mails a notice or communication to
Securityholders, it shall mail a copy to the Trustee and each Agent at the same
time.
Section 10.3 Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA
ss. 312(b) with other Securityholders of that Series or any other Series with
respect to their rights under this Indenture or the Securities of that Series or
all Series. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
Section 10.4 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.5 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(a) a statement that the person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
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(c) a statement that, in the opinion of such person, 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
(d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Section 10.6 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a
meeting of Securityholders of one or more Series. Any Agent may make reasonable
rules and set reasonable requirements for its functions.
Section 10.7 Legal Holidays.
Unless otherwise provided by Board Resolution, Officers'
Certificate or supplemental indenture for a particular Series, a "Legal Holiday"
is any day that is not a Business Day. If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
Section 10.8 No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
Section 10.9 Counterparts.
This Indenture may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Section 10.10 Governing Laws.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
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Section 10.11 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or a Subsidiary. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
Section 10.12 Successors.
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
Section 10.13 Severability.
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 10.14 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 10.15 Securities in a Foreign Currency or in ECU.
Unless otherwise specified in a Board Resolution, a
supplemental indenture hereto or an Officers' Certificate delivered pursuant to
Section 2.2 of this Indenture with respect to a particular Series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all
Series or all Series affected by a particular action at the time outstanding
and, at such time, there are outstanding Securities of any Series which are
denominated in a coin or currency other than Dollars (including ECUs), then the
principal amount of Securities of such Series which shall be deemed to be
outstanding for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market Exchange Rate at
such time. For purposes of this Section 10.15, "Market Exchange Rate" shall mean
the noon Dollar buying rate in New York City for cable transfers of that
currency as published by the Federal Reserve Bank of New York; provided,
however, in the case of ECUs, Market Exchange Rate shall mean the rate of
exchange determined by the Commission of the European Union (or any successor
thereto) as published in the Official Journal of the European Union (such
publication or any successor publication, the "Journal"). If such Market
Exchange Rate is not available for any reason with
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respect to such currency, the Trustee shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of New
York or, in the case of ECUs, the rate of exchange as published in the Journal,
as of the most recent available date, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in The City of New York or in the
country of issue of the currency in question or, in the case of ECUs, in
Luxembourg or such other quotations or, in the case of ECUs, rates of exchange
as the Trustee, upon consultation with the Company, shall deem appropriate. The
provisions of this paragraph shall apply in determining the equivalent principal
amount in respect of Securities of a Series denominated in currency other than
Dollars in connection with any action taken by Holders of Securities pursuant to
the terms of this Indenture.
All decisions and determinations of the Trustee regarding the
Market Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive to the extent permitted by law for all purposes
and irrevocably binding upon the Company and all Holders.
Section 10.16 Judgment Currency.
The Company agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining
judgment in any court it is necessary to convert the sum due in respect of the
principal of or interest or other amount on the Securities of any Series (the
"Required Currency") into a currency in which a judgment will be rendered (the
"Judgment Currency"), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the day on which
final unappealable judgment is entered, unless such day is not a New York
Banking Day, then, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the New York
Banking Day preceding the day on which final unappealable judgment is entered
and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, any recovery
pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by the payee,
of the full amount of the Required Currency expressed to be payable in respect
of such payments, (ii) shall be enforceable as an alternative or additional
cause of action for the purpose of recovering in the Required Currency the
amount, if any, by which such actual receipt shall fall short of the full amount
of the Required Currency so expressed to be payable, and (iii) shall not be
affected by judgment being obtained for any other sum due under this Indenture.
For purposes of the foregoing, "New York Banking Day" means any day except a
Saturday, Sunday
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or a legal holiday in The City of New York on which banking institutions are
authorized or required by law, regulation or executive order to close.
ARTICLE XI.
SINKING FUNDS
Section 11.1 Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Securities of a Series, except as
otherwise permitted or required by any form of Security of such Series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by
the terms of the Securities of any Series is herein referred to as a "mandatory
sinking fund payment" and any other amount provided for by the terms of
Securities of such Series is herein referred to as an "optional sinking fund
payment." If provided for by the terms of Securities of any Series, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 11.2. Each sinking fund payment shall be applied to the redemption of
Securities of any Series as provided for by the terms of the Securities of such
Series.
Section 11.2 Satisfaction of Sinking Fund Payments with
Securities.
The Company may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of any Series to be made
pursuant to the terms of such Securities (1) deliver outstanding Securities of
such Series to which such sinking fund payment is applicable (other than any of
such Securities previously called for mandatory sinking fund redemption) and (2)
apply as credit Securities of such Series to which such sinking fund payment is
applicable and which have been redeemed either at the election of the Company
pursuant to the terms of such Series of Securities (except pursuant to any
mandatory sinking fund) or through the application of permitted optional sinking
fund payments or other optional redemptions pursuant to the terms of such
Securities, provided that such Securities have not been previously so credited.
Such Securities shall be received by the Trustee, together with an Officers'
Certificate with respect thereto, not later than 15 days prior to the date on
which the Trustee begins the process of selecting Securities for redemption, and
shall be credited for such purpose by the Trustee at the price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly. If as a result of the
delivery or credit of Securities in lieu of cash payments pursuant to this
Section 11.2, the principal amount of Securities of such Series to be redeemed
in order to exhaust the aforesaid cash payment shall be less than $100,000, the
Trustee need not call Securities of
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such Series for redemption, except upon receipt of a Company Order that such
action be taken, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall from time to time upon
receipt of a Company Order pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities of that Series purchased by the Company having an
unpaid principal amount equal to the cash payment required to be released to the
Company.
Section 11.3 Redemption of Securities for Sinking Fund.
Not less than 45 days (unless otherwise indicated in the Board
Resolution, supplemental indenture hereto or Officers' Certificate in respect of
a particular Series of Securities) prior to each sinking fund payment date for
any Series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that Series pursuant to the terms of that Series, 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 of
Securities of that Series pursuant to Section 11.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days (unless otherwise indicated in the Board Resolution,
Officers' Certificate or supplemental indenture in respect of a particular
Series of Securities) before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.2 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 3.3. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.4, 3.5 and 3.6.
51
57
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
IDEX Corporation
By:________________________________
Name:
Title:
[Name of Trustee]
By:________________________________
Name:
Title:
1
EXHIBIT 5
[LETTERHEAD OF LATHAM & WATKINS]
December 5, 1997
IDEX Corporation
630 Dundee Road
Northbrook, Illinois 60062
Re: $250,000,000 Aggregate Offering Price of Securities of IDEX
Corporation
Ladies and Gentlemen:
In connection with the registration statement on Form S-3 (the
"Registration Statement") filed on December 5, 1997 with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), you have requested our opinion with respect to
the matters set forth below.
You have provided us with a draft prospectus (the "Prospectus") which
is a part of the Registration Statement. The Prospectus provides that it will
be supplemented in the future by one or more supplements to the Prospectus
(each, a "Prospectus Supplement"). The Prospectus as supplemented by various
Prospectus Supplements will provide for the registration by IDEX Corporation, a
Delaware corporation (the "Company"), of up to $250,000,000 aggregate offering
price of (i) unsecured debt securities (the "Debt Securities"), (ii) warrants
to purchase Debt Securities (the "Debt Warrants"), (iii) shares of preferred
stock, $.01 par value per share (the "Preferred Stock"), (iv) warrants to
purchase shares of Preferred Stock (the "Preferred Stock Warrants"), (v) shares
of common stock, $.01 par value per share (the "Common Stock"), and (vi)
warrants to purchase shares of Common Stock (the "Common Stock Warrants" and
collectively with the Debt Warrants and the Preferred Stock Warrants, the
"Warrants"). The Debt Securities, the Preferred Stock, the Common Stock and
the Warrants are collectively referred to as the "Securities." Any Debt
Securities may be exchangeable for or convertible into
2
IDEX Corporation
December 5, 1997
Page 2
shares of Preferred Stock or Common Stock. Any Preferred Stock may be
exchangeable for or convertible into shares of Common Stock. The Debt
Securities may be issued pursuant to one or more indentures and one or more
supplements thereto (collectively, the "Indentures"), in each case between the
Company and a trustee (each, a "Trustee"). The Warrants may be issued pursuant
to one or more agreements and one or more supplements thereto (collectively,
the "Warrant Agreements"), in each case between the Company and an agent (each,
a "Warrant Agent").
In our capacity as your special counsel in connection with the
Registration Statement, we are generally familiar with the proceedings taken
and proposed to be taken by the Company in connection with the authorization
and issuance of the Securities. For purposes of this opinion, we have assumed
that such proceedings will be timely and properly completed, in accordance with
all requirements of applicable federal, Delaware and New York laws, in the
manner presently proposed.
We have made such legal and factual examinations and inquiries,
including an examination of originals and copies certified or otherwise
identified to our satisfaction of all such documents, corporate records and
instruments of the Company, as we have deemed necessary or appropriate for
purposes of this opinion. In our examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals, and the conformity to authentic original documents of all documents
submitted to us as copies.
We have obtained and relied upon, to the extent we deem appropriate,
certificates of officers or other executives of the Company and of public
officials as to factual matters. We are opining herein as to the effect on the
subject transaction only of the General Corporation Law of the State of
Delaware and with respect to opinion paragraphs (1) and (2) below, the internal
laws of the State of New York, and we express no opinion with respect to the
applicability thereto, or the effect thereon, of the laws of any other
jurisdiction or, in the case of Delaware, any other laws, or as to any matters
of municipal law or the laws of any local agencies within any state.
Subject to the foregoing and the other qualifications set forth
herein, as of the date hereof, it is our opinion that:
1. When the Debt Securities (including any Debt Securities issuable
upon exercise of Debt Warrants) have been duly established in accordance with
the terms of the applicable Indenture, duly authenticated by the applicable
Trustee and duly executed and delivered by or on behalf of the Company against
payment therefor in accordance with the terms and provisions of the applicable
Indenture and as contemplated by the Registration Statement, the Prospectus and
the related Prospectus Supplement, then (i) assuming that the terms of the Debt
Securities as executed and delivered are as described in the Registration
Statement, the
3
IDEX Corporation
December 5, 1997
Page 3
Prospectus and the related Prospectus Supplement, (ii) assuming that the Debt
Securities as executed and delivered do not violate any law applicable to the
Company or result in a default under or breach of any agreement or instrument
binding upon the Company, and (iii) assuming that the Debt Securities as
executed and delivered comply with all requirements and restrictions, if any,
applicable to the Company, whether imposed by any court or by any governmental
or regulatory body having jurisdiction over the Company, the Debt Securities
will constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
2. When the Warrants have been duly authorized by adoption of a
resolution by the Board of Directors, and executed and delivered by or on
behalf of the Company against payment therefor in accordance with the terms and
provisions of the Warrant Agreement to which they are subject and as
contemplated by the Registration Statement, assuming that the terms of the
Warrants as executed and delivered are as described in the Registration
Statement, the Prospectus and the related Prospectus Supplement, then the
Warrants will be validly issued.
3. Upon adoption by the Board of Directors of the Company of a
resolution in form and content as required by applicable law (including
adoption and filing of a Certificate of Designation or other Amendment to the
Company's Restated Certificate of Incorporation designating the terms of such
Preferred Stock) that authorizes the issuance of such Preferred Stock within
the authorized number of shares of Preferred Stock then specified in the
Company's Restated Certificate of Incorporation, as amended, after giving
effect to any then outstanding Preferred Stock and reservation of Preferred
Stock by the Board of Directors, and upon issuance and delivery of and payment
for such shares in the manner contemplated by the Registration Statement, the
Prospectus and the related Prospectus Supplement and by such resolution,
assuming that the terms of the Preferred Stock as executed and delivered are as
described in the Registration Statement, the Prospectus and the related
Prospectus Supplement, such shares of Preferred Stock (including any Preferred
Stock duly issued upon the exchange or conversion of validly issued Debt
Securities that are exchangeable for or convertible into Preferred Stock or
upon exercise of validly issued Warrants) will be validly issued, fully paid
and nonassessable.
4. Upon adoption by the Board of Directors of the Company of a
resolution in form and content as required by applicable law that authorizes
the issuance of such Common Stock within the authorized number of shares of
Common Stock then specified in the Company's Restated Certificate of
Incorporation, as amended, after giving effect to any then outstanding Common
Stock and reservation of Common Stock by the Board of Directors, and upon
issuance and delivery of and payment for such shares in the manner contemplated
by the Registration Statement, the Prospectus and the related Prospectus
Supplement and by such resolution, assuming that the terms of the Common Stock
as executed and delivered are as described in the Registration Statement, the
Prospectus and the related Prospectus Supplement, such shares of
4
IDEX Corporation
December 5, 1997
Page 4
Common Stock (including any Common Stock duly issued upon the exchange or
conversion of validly issued Debt Securities that are exchangeable for or
convertible into Common Stock or upon the exercise of validly issued Warrants)
will be validly issued, fully paid and nonassessable.
The opinions set forth in paragraphs (1) and (2) above are subject to
the following exceptions, limitations and qualifications: (i) we express no
opinion with respect to the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors; (ii) we express no opinion with
respect to the effect of general principles of equity, regardless of whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought;
(iii) we express no opinion with respect to the unenforceability under certain
circumstances under law or court decisions of provisions providing for the
indemnification of, or contribution to, a party with respect to a liability
where such indemnification or contribution is contrary to public policy; (iv)
we express no opinion concerning the enforceability of any waiver of rights or
defenses with respect to stay, extension or usury laws; and (v) we express no
opinion with respect to whether acceleration of Debt Securities may affect the
collectibility of any portion of the stated principal amount thereof which
might be determined to constitute unearned interest thereon.
We assume for the purposes of this opinion that the Registration
Statement and any required post-effective amendments thereto will have become
effective under the Securities Act; the Company has been duly incorporated and
is validly existing as a corporation under the laws of the State of Delaware
and has the corporate power and authority to issue and sell the Securities; the
applicable Indentures will have been duly authorized by all necessary corporate
action by the Company, duly executed and delivered by the Company and will
constitute legally valid and binding obligations of the Company enforceable
against the Company in accordance with their terms; the Trustee under each
Indenture is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; the Trustee under each Indenture is
duly qualified to engage in the activities contemplated by the applicable
Indenture; each Indenture will have been duly authorized, executed and
delivered by the applicable Trustee and will constitute a legal, valid and
binding obligation of such Trustee, enforceable against such Trustee in
accordance with its terms; the Trustee under each Indenture is in compliance,
generally and with respect to acting as Trustee under the applicable Indenture,
with all applicable laws and regulations; and the Trustee under each Indenture
has the requisite organizational and legal power and authority to perform its
obligations under the applicable Indenture.
We assume for purposes of this opinion that the applicable Warrant
Agreements will have been duly authorized by all necessary corporate action by
the Company, duly executed and delivered by the Company and will constitute
legally valid and binding obligations of the Company enforceable against the
Company in accordance with their terms; the Warrant Agent
5
IDEX Corporation
December 5, 1997
Page 5
under each Warrant Agreement is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; the Warrant Agent
under each Warrant Agreement is duly qualified to engage in the activities
contemplated by the applicable Warrant Agreement; each Warrant Agreement will
have been duly authorized, executed and delivered by the applicable Warrant
Agent and will constitute a legal, valid and binding obligation of such
Warrant Agent, enforceable against such Warrant Agent in accordance with its
terms; the Warrant Agent under each Warrant Agreement is in compliance,
generally and with respect to acting as Warrant Agent under the applicable
Warrant Agreement, with all applicable laws and regulations; and the Warrant
Agent under each Warrant Agreement has the requisite organizational and legal
power and authority to perform its obligations under the applicable Warrant
Agreement.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference of our firm under the caption
"Legal Matters" in the Prospectus included therein.
Very truly yours,
/s/ Latham & Watkins
1
IDEX CORPORATION
RATIO OF EARNINGS BEFORE FIXED CHARGES TO FIXED CHARGES
(IN THOUSANDS, EXCEPT RATIOS)
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
----------------------- -------------
1996 1995 1994 1993 1992 1997 1996
---- ---- ---- ---- ---- ---- ----
EARNINGS BEFORE FIXED CHARGES:
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY ITEMS.................... $78,854 $71,043 $52,516 $38,298 $30,984 $68,054 $57,350
ADD:
FIXED CHARGES.......................... 18,942 15,948 13,581 11,007 12,178 14,463 13,537
------- ------- ------- ------- ------- ------- -------
TOTAL EARNINGS BEFORE FIXED CHARGES.... $97,796 $86,991 $66,097 $49,305 $43,162 $82,517 $70,887
======= ======= ======= ======= ======= ======= =======
FIXED CHARGES:
INTEREST ON INDEBTEDNESS............... $18,302 $15,324 $12,962 $10,367 $11,299 $13,977 $13,062
AMORTIZATION OF DEBT ISSUANCE
EXPENSES............................... 640 624 619 640 879 486 475
RENTAL EXPENSE REPRESENTATIVE
OF THE INTEREST FACTOR................. - - - - - - -
------- ------- ------- ------- ------- ------- -------
TOTAL FIXED CHARGES.................... $18,942 $15,948 $13,581 $11,007 $12,178 $14,463 $13,537
======= ======= ======= ======= ======= ======= =======
RATIO OF EARNINGS BEFORE FIXED
CHARGES TO FIXED CHARGES............... 5.16x 5.45x 4.87x 4.48x 3.54x 5.71x 5.24x
======= ======= ======= ======= ======= ======= =======
1
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of IDEX Corporation on Form S-3, of our reports dated January 21, 1997
appearing and incorporated by reference in the Annual Report on Form 10-K of
IDEX Corporation for the year ended December 31, 1996, and to the references to
us under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Chicago, Illinois
December 5, 1997
