-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, syLw0D3FUXJIxXvGmcVXj+99Mus+ZO77+zQSCvT6OI2RZyfSGfUiJrbiEifGyg4D 1uTAXnkQa6PPxC9kxBSLOg== 0000950123-94-001611.txt : 19941013 0000950123-94-001611.hdr.sgml : 19941013 ACCESSION NUMBER: 0000950123-94-001611 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 13 FILED AS OF DATE: 19941012 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: ASARCO INC CENTRAL INDEX KEY: 0000007649 STANDARD INDUSTRIAL CLASSIFICATION: 3330 IRS NUMBER: 134924440 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 033-55993 FILM NUMBER: 94552386 BUSINESS ADDRESS: STREET 1: 180 MAIDEN LN CITY: NEW YORK STATE: NY ZIP: 10038 BUSINESS PHONE: 2125102000 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN SMELTING & REFINING CO DATE OF NAME CHANGE: 19760607 S-3 1 ASARCO INCORPORATED FORM S-3 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 12, 1994. REGISTRATION NO. 33- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ ASARCO INCORPORATED (Exact name of registrant as specified in its charter) NEW JERSEY 13-4924440 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification No.)
180 Maiden Lane New York, New York 10038 (212) 510-2000 (Address, including zip code and telephone number, including area code, of registrant's principal executive offices) Augustus B. Kinsolving, Esq. ASARCO Incorporated 180 Maiden Lane, New York, New York 10038 (212) 510-2000 (Name, address, including zip code and telephone number, including area code, of agent for service) ------------------------ COPIES TO: Kevin Keogh, Esq. Kris F. Heinzelman, Esq. White & Case Cravath, Swaine & Moore 1155 Avenue of the Americas 825 Eighth Avenue New York, New York 10036 New York, New York 10019-7475
------------------------ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after this Registration Statement becomes effective. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / / If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. /X/ ------------------------ CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------- PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION SECURITIES TO BE REGISTERED BE REGISTERED(1) PER UNIT(1)(2) OFFERING PRICE(1)(2) FEE - ------------------------------------------------------------------------------------------------------------------- Primary Offering: Debt Securities(3)(4).......... Convertible Debt Securities (3)(4)(5)................... $300,000,000(2)(6) $300,000,000 $103,448.28 Common Stock(3)(4)(7).......... Preferred Stock(3)(4)(8)....... Depositary Shares(3)(9)........ Convertible Preferred Stock(3)(4)(5).............. Warrants(4).................... - ------------------------------------------------------------------------------------------------------------------- Secondary Offering: Common Stock(8)(9)............. 10,353,363 shares $31 13/16 $329,366,360 $113,574.61 - -------------------------------------------------------------------------------------------------------------------
Notes are 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 THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 - --------------- (1) In United States dollars or the equivalent thereof in foreign currency or currency units. (2) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457 under the Securities Act of 1933. (3) No separate consideration will be received for the Depositary Shares, or for the Debt Securities, Preferred Stock, Convertible Preferred Stock or Common Stock which may be issuable upon conversion of or in exchange for the Convertible Debt Securities or Preferred Stock. (4) In no event will the aggregate initial price of the Debt Securities, Convertible Debt Securities, Preferred Stock, Common Stock, Convertible Preferred Stock and Warrants (collectively, "Securities") offered in the Primary Offering exceed $300,000,000. (5) Such indeterminate amounts of Debt Securities and Convertible Debt Securities, and such indeterminate number of shares of Preferred Stock, Convertible Preferred Stock and Common Stock, as may be issued upon conversion or exchange of any Convertible Debt Securities, Preferred Stock or Convertible Preferred Stock that provide for conversion or exchange into other securities. (6) The Common Stock to be issued in the Primary Offering and Secondary Offering includes Preferred Stock Purchase Rights associated with the Common Stock under a Shareholder Rights Plan. (7) Such indeterminate number of Depositary Shares to be evidenced by Depositary Receipts issued pursuant to a Deposit Agreement. In the event the Registrant elects to offer to the public fractional interests in shares of the Preferred Stock registered hereunder, Depositary Receipts will be distributed to those persons acquiring such fractional interest and the shares of Preferred Stock will be issued to the Depositary under the Deposit Agreement. (8) Calculated pursuant to Rule 457(a), based upon bona fide estimate as of the date hereof of maximum offering price. (9) Includes Common Stock that is to be offered and sold outside the United States either as part of the distribution or within 40 days after the date of the effective date of this registration statement and the date the Common Stock is first offered to the public. 3 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 LAW OF ANY SUCH STATE. SUBJECT TO COMPLETION, DATED OCTOBER 12, 1994 PROSPECTUS ASARCO Incorporated Debt Securities Convertible Debt Securities Common Stock Preferred Stock Depositary Shares Convertible Preferred Stock Warrants ----------------------- ASARCO Incorporated ("Asarco" or the "Company") may from time to time offer, together or separately, (i) its debt securities consisting of debentures, notes or other unsecured evidences of indebtedness (the "Debt Securities"); (ii) its convertible debt securities (the "Convertible Debt Securities"), consisting of debentures, notes or other evidences of indebtedness representing unsecured obligations of the Company convertible into common stock, without par value (the "Common Stock") or into Preferred Stock, without par value (the "Preferred Stock") of the Company; (iii) shares of its Preferred Stock, which may be represented by Depository Receipts (the "Depositary Shares") which will represent a fraction of a share of Preferred Stock; (iv) shares of its Preferred Stock convertible into Common Stock or another series of Preferred Stock (the "Convertible Preferred Stock"), which may be represented by Depositary Shares; and (v) warrants to purchase securities of the Company as shall be designated by the Company at the time of the offering (the "Warrants"), in each case, in amounts, at prices and on terms to be determined at the time of the offering. Both the Company and M.I.M. Holdings Limited ("MIM" or the "Selling Stockholder") may also offer and sell from time to time shares of the Common Stock. The Common Stock, the Debt Securities, the Convertible Debt Securities, the Preferred Stock, the Convertible Preferred Stock, the Depositary Shares and the Warrants are collectively called the "Securities." The aggregate initial offering price of the Securities offered by the Company hereby will not exceed $300,000,000 or its equivalent in any other currency or composite currency determined at the applicable exchange rate at the time of sale, and the number of shares of Common Stock offered by the Selling Stockholder hereby will not exceed 10,353,363. The Company will not receive any of the proceeds from the sale of shares by the Selling Stockholder. For each offering of Securities for which this Prospectus is being delivered, there will be an accompanying Prospectus Supplement (the "Prospectus Supplement"), which sets forth, where applicable, (i) in the case of Debt Securities and Convertible Debt Securities, the specific designation, aggregate principal amount, the denomination, maturity, premium, if any, the rate (which may be fixed or variable), time and method of calculating payment of interest, if any, on such Debt Securities or Convertible Debt Securities, any terms of redemption at the option of the Company or the holder, terms for sinking fund payments, and with respect to Convertible Debt Securities, terms for conversion into Common Stock or Preferred Stock; (ii) in the case of Preferred Stock or Convertible Preferred Stock, the specific title and stated value, any dividend, liquidation, redemption, voting and other rights, and any other special terms, including the terms of any Depositary Shares representing Preferred Stock and terms for converting Convertible Preferred Stock into other Securities; (iii) in the case of Common Stock, the number of shares of Common Stock and the terms of offering thereof; and (iv) in the case of Warrants, the designation and number, the exercise price, any listing of the Warrants or the underlying Securities on a securities exchange and any other terms in connection with the offering, sale and exercise of the Warrants. If so specified in the applicable Prospectus Supplement, Debt Securities and Convertible Debt Securities of a series may be issued in whole or in part in the form of one or more temporary or permanent global securities. The Prospectus Supplement will also contain information, as applicable, about certain United States Federal income tax considerations relating to the particular Securities offered thereby. The Company and the Selling Stockholder may sell the Securities to or through underwriters, through dealers or agents or directly to purchasers. See "Plan of Distribution." The accompanying Prospectus Supplement will set forth the names of any underwriters, dealers or agents involved in the sale of the Securities in respect of which this Prospectus is being delivered, the amounts proposed to be purchased by them, any applicable fee, commission or discount arrangements with them, the initial public offering price and the net proceeds to the Company or the Selling Stockholder. The Common Stock is listed on the New York Stock Exchange under the symbol "AR." Any shares of Common Stock sold pursuant to a Prospectus Supplement will be listed on such exchange, subject to an official notice of issuance. ------------------ 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 AD- EQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this Prospectus is October 12, 1994. 4 AVAILABLE INFORMATION Asarco is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance therewith, files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information can be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and the following regional offices of the Commission: New York regional office, Seven World Trade Center, 13th Floor, New York, New York 10048; and Midwest regional office, Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such material can be obtained at prescribed rates by writing to the Commission, Public Reference Section, 450 Fifth Street, N.W., Washington, D.C. 20549. Such material can also be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005. This Prospectus constitutes part of a Registration Statement filed by Asarco with the Commission under the Securities Act of 1933, as amended (the "Act"). This Prospectus omits certain of the information contained in the Registration Statement, and reference is hereby made to the Registration Statement and to the exhibits relating thereto for further information with respect to the Company and the Securities offered hereby. Any statements contained herein concerning the provisions of any document are not necessarily complete, and, in each instance, reference is made to the copy of such document filed as an exhibit to the Registration Statement or otherwise filed with the Commission. Each such statement is qualified in its entirety by such reference. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE There are hereby incorporated by reference in this Prospectus the Company's (i) Annual Report on Form 10-K for the fiscal year ended December 31, 1993, (ii) Quarterly Reports on Form 10-Q for the quarters ended March 31, and June 30, 1994, (iii) Proxy Statement for the Annual Meeting of Stockholders on April 27, 1994 (filed with the Commission on March 18, 1994) and (iv) Current Report on Form 8-K dated September 30, 1994 heretofore filed by the Company (Commission File Number 1-164) with the Commission pursuant to the Exchange Act. All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to the termination of the offering of the Securities offered hereby shall be deemed to be incorporated by reference in this Prospectus and 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 or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. Asarco will provide without charge to each person to whom a copy of this Prospectus has been delivered, on the request of any such person, a copy of any or all of the documents referred to above which have been or may be incorporated in this Prospectus by reference, other than exhibits to such documents (unless such exhibits are specifically incorporated by reference into such document). Requests for such copies should be directed to Mr. Augustus B. Kinsolving, Vice President, General Counsel and Secretary, ASARCO Incorporated, 180 Maiden Lane, New York, New York 10038, Telephone: (212) 510-2000. ------------------------------------ NO PERSON HAS BEEN AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER OR AGENT. THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES OR ANY OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF AND THEREOF. 2 5 THE COMPANY Asarco is one of the world's leading producers of nonferrous metals, principally copper, lead, zinc, silver and gold. Asarco also produces specialty chemicals and minerals and provides environmental services. Asarco has substantial equity interests in three mining companies: 15.5% in M.I.M. Holdings Limited ("MIM"), 52.3% in Southern Peru Copper Corporation ("SPCC") and 23.6% in Grupo Mexico, S.A. de C.V. ("GMEXICO"). Such companies are referred to herein as "associated companies." Asarco's strategy since the mid-1980s has been to transform the Company into an integrated producer of copper and lead. Once principally a custom smelter and refiner of ores and concentrates produced by others, Asarco has evolved during the last decade into one of the world's largest integrated producers of nonferrous metals. In 1985, Asarco supplied less than 25% of its copper concentrate and 5% of its lead concentrate requirements; in 1991 Asarco supplied approximately 76% of its copper concentrate and 43% of its lead concentrate requirements. With the completion of Asarco's expansion programs in 1993, the Company is now able to supply all of its copper concentrate and 95% of its lead concentrate requirements for its Missouri lead operations. Since 1988 Asarco has also expanded its specialty chemicals business both by growth of its existing business and by acquisition, has expanded its minerals business by acquisition and has entered the hazardous waste management and waste recycling business. Asarco or its associated companies operate mines, smelters and refineries in the United States, Australia, Mexico and Peru. Asarco and its associated companies together in 1993 accounted for about 13% of the western world mine production of copper, 22% of lead, 13% of zinc and 13% of silver. The executive offices of Asarco, a New Jersey corporation organized in 1899, are located at 180 Maiden Lane, New York, New York 10038, telephone number (212) 510-2000. USE OF PROCEEDS Unless otherwise set forth in the applicable Prospectus Supplement, Asarco intends to use the net proceeds from the sale of the Securities for general corporate purposes, which may include refinancings of indebtedness, working capital, capital expenditures and acquisitions. The Company will not receive any of the proceeds from the sale of shares of Common Stock by the Selling Stockholder. CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES AND COMBINED FIXED CHARGES AND PREFERRED SHARE DIVIDEND REQUIREMENTS
YEAR ENDED DECEMBER 31, SIX MONTHS ENDED ---------------------------------------- JUNE 30, 1994 1993 1992 1991 1990 1989 ---------------- ---- ---- ---- ---- ---- 2.1 (a) (a) 1.5 3.5 8.2
- --------------- (a) For the years 1992 and 1993, earnings were insufficient to cover fixed charges by $73.9 million and $135.3 million, respectively. The ratio of earnings to fixed charges was calculated based on information from the Company's books and records. In computing the ratio of earnings to fixed charges, earnings consist of net earnings of the Company and its consolidated subsidiaries plus taxes on income and fixed charges, plus dividends received from non-consolidated associated companies accounted for by the equity method, less interest capitalized net of amount amortized and less equity earnings of non-consolidated associated companies accounted for by the equity method. Fixed charges consist of interest costs on borrowed funds, including capitalized interest, commitment fees, and a reasonable approximation of the imputed interest on non-capitalized lease payments. There were no preferred shares outstanding during any of the periods indicated and therefore the ratio of earnings to combined fixed charges and preferred share dividend requirements would have been the same as the ratio of earnings to fixed charges for each period indicated. 3 6 SELLING STOCKHOLDER The following table sets forth certain information with respect to MIM's beneficial ownership of Common Stock, as adjusted to reflect the sale by MIM of the 10,353,363 shares owned by MIM and registered for possible sale hereby. The Common Stock is the only class of equity securities of the Company which is currently outstanding.
SHARES BENEFICIALLY SHARES BENEFICIALLY OWNED IF ALL OWNED PRIOR TO REGISTERED OFFERING NUMBER OF SHARES ARE SOLD --------------------- SHARES BEING -------------------- SELLING STOCKHOLDER(1) NUMBER PERCENT REGISTERED FOR SALE NUMBER PERCENT - ------------------------------- --------- ------- ------------------- -------- ------- M.I.M. Holdings Limited........ 10,353,363 24.7 10,353,363 -0- -0-
- --------------- (1) The address of MIM is M.I.M. Plaza, 410 Ann Street, Brisbane, Queensland 4000, Australia. MIM's decision, subject to market conditions, to sell shares of Asarco is pursuant to a strategy of concentrating on core businesses over which it has direct control and which are low cost producers of the core products of those businesses. The following is a summary description of a 1981 agreement, as amended in 1985, 1987, 1990 and 1993, between MIM and Asarco (the "Agreement"). This summary does not purport to be complete and is subject to, and is qualified in its entirety by reference to, the provisions of the Agreement. A copy of the Agreement, including the amendments thereto, are exhibits to the Company's Form 10-Q for the second quarter 1981, Form 8-K dated September 30, 1985, Form 8-K filed on September 30, 1987, Form 8-K filed on September 24, 1990 and Form 8-K filed on July 15, 1993. Under the Agreement, MIM has the right to require the Company, under certain conditions, to register under the Act 1,000,000 or more of the shares of the Company's Common Stock it owns should MIM wish to sell such shares. Under the Agreement, with respect to 4,938,400 shares of Asarco Common Stock held by MIM, MIM must provide Asarco with prior written notice of any proposed sale or transfer of 1,000,000 or more shares in a single transaction, a group of related transactions or pursuant to a program of transactions, unless such proposed sale or transfer is pursuant to an underwritten public offering or to a subsidiary of MIM. Asarco has the right to purchase all of the shares set forth in such notice at the price set forth in such notice for 90 days after receipt by Asarco of such notice. Asarco also has agreed to give MIM prior notice of any registered public offering by Asarco of its Common Stock for cash and to include at MIM's request (at MIM's pro rata expense) any shares of the Company's Common Stock owned by MIM in such offering unless including such shares would, in the opinion of the underwriter, raise a substantial question as to whether the proposed offering could be successfully consummated on terms reasonably acceptable to Asarco. The provisions of the Agreement with respect to Asarco's right of first refusal expire on a date designated by either party by twelve months' prior notice (the "Expiration Date"). Under the Agreement, MIM has the right to designate two nominees to Asarco's Board of Directors so long as MIM owns more than 6,500,000 shares of Asarco's Common Stock, adjusted for stock dividends or stock splits, and so long as such ownership constitutes more than 10% of Asarco's Common Stock. Pursuant to the Agreement, Asarco's management has recommended to Asarco's Board of Directors that two nominees designated by MIM be included in the slate of nominees recommended by Asarco's Board of Directors to shareholders for election as directors. Currently Norman C. Fussell and Peter R. Rowland, the Managing Director and a director of MIM, respectively, are directors of Asarco. Asarco has the right to nominate two persons for election to MIM's Board of Directors so long as Asarco's ownership exceeds 241,718,641 MIM common shares, which shall be adjusted for stock dividends, stock splits and rights offers and so long as such ownership constitutes more than 10% of MIM's outstanding common shares. Asarco now owns sufficient MIM shares to have the right to nominate two directors of MIM but does not currently intend to exercise this right. In the Agreement, MIM agreed, subject to certain exceptions, to limit its beneficial ownership of Asarco's Common Stock to 33 1/3% of the outstanding shares of Common Stock until the Expiration Date and Asarco agreed to limit its ownership of MIM's common shares to 40% for the same period. 4 7 Also, under the Agreement, MIM and Asarco have agreed not to authorize or otherwise amend their organizational documents to provide for the authorization of, or issue of, voting securities which would adversely affect in a discriminatory manner the voting rights of the other party so long as the party in whose benefit such covenant runs owns 10% of the voting securities of the other party. The Agreement provides that MIM and Asarco will, prior to any sale, exchange, transfer or other disposition of any shares of the other party owned by MIM or Asarco, as the case may be, meet to consult and discuss in good faith for a period of (except in certain circumstances) no less than 30 days the effects of such proposed disposition. DESCRIPTION OF COMMON STOCK The Company has authorized 80 million shares of Common Stock, without par value, of which 41,946,555 shares were issued and outstanding as of August 31, 1994. The shares of Common Stock currently outstanding are, and the shares of Common Stock that may be offered hereby will be, fully paid and non-assessable. Each holder of Common Stock is entitled to one vote for each share owned of record on all matters voted upon by stockholders, and a majority vote is required for all action to be taken by stockholders except for certain transactions with interested shareholders, for which a vote of 80% of outstanding shares is required for approval. In the event of a liquidation, dissolution or winding-up of the Company, the holders of Common Stock are entitled to share equally and ratably in the assets of the Company, if any, remaining after the payment of all debts and liabilities of the Company and the liquidation preference of any outstanding Preferred Stock. The holders of the Common Stock have no preemptive rights or cumulative voting rights and there are no redemption, sinking fund or conversion provisions applicable to the Common Stock. Holders of Common Stock are entitled to receive dividends if, as and when declared by the Board of Directors out of funds legally available for such purpose, subject to the dividend and liquidation rights of any Preferred Stock that may be issued. In 1989, the Company adopted a Shareholder Rights Plan and declared a dividend of one right (as defined therein) for each share of its Common Stock. In certain circumstances, if a person or group becomes the beneficial owner of 15% or more of the outstanding Common Stock (or in the case of MIM, more than 33 1/3%), with certain exceptions, these rights vest and entitle the holder to certain share purchase rights. In connection with the Rights dividend, 800,000 shares of Junior Participating Preferred Stock were authorized for issuance upon exercise of the Rights. See "Description of Preferred Share Purchase Rights -- Junior Participating Preferred Stock" below. DESCRIPTION OF PREFERRED STOCK The following summary contains a description of certain general terms of the Company's Preferred Stock to which any Prospectus Supplement may relate. Certain terms of any series of Preferred Stock that may be offered by any Prospectus Supplement will be described in the Prospectus Supplement relating thereto. If so indicated in the Prospectus Supplement, the terms of any series may differ from the terms set forth below. The description of certain provisions of the Company's Preferred Stock does not purport to be complete and is subject to and qualified in its entirety by reference to the provisions of the Company's Restated Certificate of Incorporation, as amended (the "Certificate"), and the Certificate of Designation (the "Certificate of Designation") relating to each particular series of Preferred Stock which will be filed or incorporated by reference, as the case may be, as an exhibit to the Registration Statement of which this Prospectus is a part at or prior to the time of the issuance of such Preferred Stock. GENERAL Under the Certificate, the Board of Directors of the Company is authorized, without further stockholder action to provide for the issuance of up to 10 million shares of Preferred Stock. As of September 30, 1994, no shares of Preferred Stock were issued or outstanding. The Preferred Stock may be issued in one or more series, with such designations or titles; dividend rates; any redemption provisions; special or relative rights in the event of liquidation, dissolution, distribution or 5 8 winding up of the Company; any sinking fund provisions; any conversion provisions; any voting rights thereof; and any other preferences, privileges, powers, rights, qualifications, limitations and restrictions, as shall be set forth as and when established by the Board of Directors of the Company. The shares of any series of Preferred Stock will be, when issued, fully paid and non-assessable and holders thereof will have no preemptive rights in connection therewith. The liquidation preference of any series of Preferred Stock is not necessarily indicative of the price at which shares of such series of Preferred Stock will actually trade at or after the time of their issuance. The market price of any series of Preferred Stock can be expected to fluctuate with changes in market and economic conditions, the financial condition and prospects of the Company and other factors that generally influence the market price of securities. RANK Any series of Preferred Stock will, with respect to rights on liquidation, winding up and dissolution, rank (i) senior to all classes of Common Stock and to all equity securities issued by the Company, the terms of which specifically provide that such equity securities will rank junior to such series of Preferred Stock (the "Junior Liquidation Securities"); (ii) on a parity with all equity securities issued by the Company, the terms of which specifically provide that such equity securities will rank on a parity with such series of Preferred Stock ("Parity Liquidation Securities"); and (iii) junior to all equity securities issued by the Company, the terms of which specifically provide that such equity securities will rank senior to such series of Preferred Stock (the "Senior Liquidation Securities"). In addition, any series of Preferred Stock will, with respect to dividend rights, rank (i) senior to all equity securities issued by the Company, the terms of which specifically provide that such equity securities will rank junior to such series of Preferred Stock and, to the extent provided in the applicable Certificate of Designation, to Common Stock; (ii) on a parity with all equity securities issued by the Company, the terms of which specifically provide that such equity securities will rank on a parity with such series of Preferred Stock and, to the extent provided in the applicable Certificate of Designation, to Common Stock ("Parity Dividend Securities"); and (iii) junior to all equity securities issued by the Company, the terms of which specifically provide that such equity securities will rank senior to such series of Preferred Stock. As used in any Certificate of Designation for these purposes, the term "equity securities" will not include debt securities convertible into or exchangeable for equity securities. DIVIDENDS Holders of each series of Preferred Stock will be entitled to receive, when, as and if declared by the Board of Directors of the Company out of funds legally available therefor, cash dividends at such rates and on such dates as are set forth in the Prospectus Supplement relating to such series of Preferred Stock. Dividends will be payable to holders of record of Preferred Stock as they appear on the books of the Company (or, if applicable, the records of the Depositary referred to below under "Description of Depositary Shares") on such record dates as shall be fixed by the Board of Directors. Dividends on any series of Preferred Stock may be cumulative or non-cumulative. No full dividends may be declared or paid out of funds set apart for the payment of dividends on any series of Preferred Stock unless dividends shall have been paid or set apart for such payment on the Parity Dividend Securities. If full dividends are not so paid, such series of Preferred Stock shall share dividends pro rata with the Parity Dividend Securities. CONVERSION AND EXCHANGE The Prospectus Supplement for any series of Preferred Stock will state the terms, if any, on which shares of that series are convertible into shares of another series of Preferred Stock or Common Stock or exchangeable for another series of Preferred Stock, Common Stock or Debt Securities of the Company. The Common Stock of the Company is described above under "Description of Common Stock." 6 9 REDEMPTION A series of Preferred Stock may be redeemable at any time, in whole or in part, at the option of the Company or the holder thereof and may be subject to mandatory redemption pursuant to a sinking fund or otherwise upon terms and at the redemption prices set forth in the Prospectus Supplement relating to such series. In the event of partial redemptions of Preferred Stock, whether by mandatory or optional redemption, the shares to be redeemed will be determined by lot or pro rata, as may be determined by the Board of Directors of the Company, or by any other method determined to be equitable by the Board of Directors. On and after a redemption date, unless the Company defaults in the payment of the redemption price, dividends will cease to accrue on shares of Preferred Stock called for redemption and all rights of holders of such shares will terminate except for the right to receive the redemption price. LIQUIDATION PREFERENCE Upon any voluntary or involuntary liquidation, dissolution or winding up of the Company, holders of each series of Preferred Stock that ranks senior to the Junior Liquidation Securities will be entitled to receive out of assets of the Company available for distribution to shareholders, before any distribution is made on any Junior Liquidation Securities, including Common Stock, distributions upon liquidation in the amount set forth in the Prospectus Supplement relating to such series of Preferred Stock. If the holders of the Preferred Stock of any series and any other Parity Liquidation Securities are not paid in full, the holders of the Preferred Stock of such series and the Parity Liquidation Securities will share ratably in any such distribution of assets of the Company in proportion to the full liquidation preferences to which each is entitled. After payment of the full amount of the liquidation preference to which they are entitled, the holders of such series of Preferred Stock will not be entitled to any further participation in any distribution of assets of the Company. VOTING RIGHTS Except as indicated in the Prospectus Supplement relating to a particular series of Preferred Stock or except as expressly required by applicable law or the Company's Certificate, the holders of shares of Preferred Stock will have no voting rights. DESCRIPTION OF PREFERRED SHARE PURCHASE RIGHTS In 1989, the Company adopted a Shareholder Rights Plan (the "Rights Plan") and declared a dividend of one Preferred Share Purchase Right (a "Right") for each outstanding share of Common Stock held of record at the close of business on August 7, 1989. Each Right entitles the registered holder, upon the occurrence of certain events, to purchase from the Company a unit consisting of one one-hundredth of a share (a "Unit") of Junior Participating Preferred Stock, without par value, at a purchase price of $90 per Unit. As distributed, the Rights will be attached to and will trade together with the Common Stock. They may be exercised or traded separately only after the earlier to occur of: (i) 10 days following a public announcement that a person or group of persons has obtained the right to acquire beneficial ownership of 15% or more of the outstanding Common Stock, or (ii) 10 Business days (or such later date as the Board of Directors may determine) following the commencement of a tender offer or exchange offer that would result in a person or group of persons beneficially owning 15% or more of the outstanding Common Stock. In the event that a person or group of persons acquires 15% or more of the outstanding Common Stock (with certain exceptions), each right will thereafter vest and entitle the holder to receive, upon exercise of the Right, Common Stock having a value equal to two times the exercise price of that Right. Additionally, if the Company is acquired in a merger or other business combination, or 50% or more of the Company's assets or earning power is sold or transferred, each Right shall thereafter have the right to receive, upon exercise, common stock of the acquiring company having a value equal to two times the exercise price of that Right. 7 10 In connection with the Rights Plan, 800,000 shares of Junior Participating Preferred Stock were authorized for issuance upon exercise of the Rights. The Company may redeem the Rights at a price of $.01 per Right at any time until ten days following the date a person or group of persons acquires 15% of the Company's outstanding Common Stock. The Company may amend the Rights (other than the basic economic terms of the Rights) at any time without shareholder approval. The Rights will expire by their terms on August 7, 1999. Under the Rights Plan, MIM will not be deemed an acquiring person unless and until it becomes the beneficial owner of more than 33 1/3% of the shares of outstanding Common Stock. The existence of the Rights Plan and the Rights may, under certain circumstances discourage, delay or prevent a change in control of the Company. DESCRIPTION OF DEPOSITARY SHARES The description set forth below of certain provisions of the Deposit Agreement (as defined below) and of the Depositary Shares and Depositary Receipts (as defined below) does not purport to be complete and is subject to and qualified in its entirety by reference to the forms of Deposit Agreement and Deposit Receipt, included as exhibits to the Registration Statement of which this Prospectus is a part. GENERAL The Company may, at its option, elect to offer fractional shares of Preferred Stock, rather than full shares of Preferred Stock. In the event the Company so elects, the Depositary will issue receipts for Depositary Shares, each of which will represent a fraction (to be set forth in the Prospectus Supplement relating to a particular series of Preferred Stock) of a share of a particular series of Preferred Stock as described below. The shares of any series of Preferred Stock represented by Depositary Shares will be deposited under a Deposit Agreement (the "Deposit Agreement") between the Company and a depositary that is a bank or trust company having its principal offices in the United States and having a combined capital surplus of at least $50,000,000 (the "Depositary"). Subject to the terms of the Deposit Agreement, each owner of a Depositary Share will be entitled, in proportion to the applicable fraction of a share of Preferred Stock represented by such Depositary Share, to all the rights and preferences of the Preferred Stock represented thereby (including dividend, voting, redemption, conversion and liquidation rights). The Depositary Shares will be evidenced by depositary receipts issued pursuant to the Deposit Agreement (the "Depositary Receipts"). The Depositary Receipts will be distributed to those persons purchasing the fractional shares of Preferred Stock in accordance with the terms of the offering. Pending the preparation of definitive Depositary Receipts, the Depositary may, upon the written order of the Company or any holder of deposited Preferred Stock, execute and deliver temporary Depositary Receipts which are substantially identical to, and entitle the holders thereof to all the rights pertaining to, the definitive Depositary Receipts. Depositary Receipts will be prepared thereafter without unreasonable delay, and temporary Depositary Receipts will be exchangeable for definitive Depositary Receipts at the Company's expense. DIVIDENDS AND OTHER DISTRIBUTIONS The Depositary will distribute all cash dividends or other cash distributions received in respect of the deposited Preferred Stock to the record holders of the Depositary Shares relating to such Preferred Stock in proportion to the numbers of such Depositary Shares owned by such holders. In the event of a distribution other than in cash, the Depositary will distribute property received by it to the record holders of Depositary Shares entitled thereto. If the Depositary determines that it is not feasible to make such distribution, it may, with the approval of the Company, sell such property and distribute the net proceeds from such sale to such holders. 8 11 REDEMPTION OF STOCK If a series of Preferred Stock represented by Depositary Shares is to be redeemed, the Depositary Shares will be redeemed from the proceeds received by the Depositary resulting from the redemption, in whole or in part, of such series of Preferred Stock held by the Depositary. The Depositary Shares will be redeemed by the Depositary at a price per Depositary Share equal to the applicable fraction of the redemption price per share payable in respect of the shares of Preferred Stock so redeemed. If fewer than all the Depositary Shares will be redeemed, the Depositary Shares to be redeemed will be selected by the Depositary by lot or pro rata or by any other equitable method as may be determined by the Depositary. VOTING DEPOSITED PREFERRED STOCK Upon receipt of notice of any meeting at which the holders of any series of deposited Preferred Stock are entitled to vote, the Depositary will mail the information contained in such notice of meeting to the record holders of the Depositary Shares relating to such series of Preferred Stock. Each record holder of such Depositary Shares on the record date (which will be the same date as the record date for the relevant series of Preferred Stock) will be entitled to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of the Preferred Stock represented by such holder's Depositary Shares. The Depositary will endeavor, insofar as practicable, to vote the amount of such series of Preferred Stock represented by such Depositary Shares in accordance with such instructions, and the Company will agree to take all reasonable actions that may be deemed necessary by the Depositary in order to enable the Depositary to do so. The Depositary will abstain from voting shares of the Preferred Stock to the extent it does not receive specific instructions from the holder of Depositary Shares representing such Preferred Stock. AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT The form of the Depositary Receipt evidencing the Depositary Shares and any provision of the Deposit Agreement may at any time be amended by agreement between the Company and the Depositary. However, any amendment which materially prejudices any substantially existing right of the holders of the Depositary Shares representing Preferred Stock of any series will not be effective unless such amendment has been approved by the record holders of a majority of the Depositary Shares then outstanding. Every holder of an outstanding Depositary Receipt at the time any such amendment becomes effective shall be deemed, by continuing to hold such Depositary Receipt to consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby. The Deposit Agreement may be terminated by the Company or by the Depositary only after (i) all outstanding Depositary Shares have been redeemed; or (ii) each share of Preferred Stock has been converted into other Preferred Stock or Common Stock or has been exchanged for Debt Securities; or (iii) there has been a final distribution in respect of the Preferred Stock in connection with any liquidation, dissolution or winding up of the Company and such distribution has been distributed to the holders of Depositary Shares. CHARGES OF DEPOSITARY The Company will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. The Company will pay all charges of the Depositary in connection with the initial deposit of the relevant series of Preferred Stock and any redemption of such Preferred Stock. Holders of Depositary Receipts will pay other transfer and other taxes and governmental charges and such other charges or expenses as are expressly provided in the Deposit Agreement to be for their accounts. RESIGNATION AND REMOVAL OF DEPOSITARY The Depositary may resign at any time by delivering to the Company notice of its election to do so, and the Company may at any time remove the Depositary, any such resignation or removal to take effect upon the appointment of a successor Depositary and its acceptance of such appointment. Such successor Depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or 9 12 trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000. MISCELLANEOUS The Depositary will forward all reports and communications from the Company that are delivered to the Depositary and that the Company is required to furnish to the holders of the deposited Preferred Stock. Neither the Depositary nor the Company will be liable if it is prevented or delayed by law or any circumstances beyond its control in performing its obligations under the Deposit Agreement. The obligations of the Depositary under the Deposit Agreement will be limited to performance in good faith of their duties thereunder and they will not be obligated to prosecute or defend any legal proceeding in respect of any Depositary Shares, Depositary Receipts or shares of Preferred Stock unless satisfactory indemnity is furnished. They may rely upon written advice of counsel or accountants, or upon information provided by holders of Depositary Receipts or other persons believed to be competent and on documents believed to be genuine. DESCRIPTION OF DEBT SECURITIES The Debt Securities and the Convertible Debt Securities are to be issued under an Indenture dated as of October 1, 1994 (the "Indenture"), between the Company and Chemical Bank, as Trustee (the "Trustee"). The following summary statements with respect to the Debt Securities and the Convertible Debt Securities do not purport to be complete and are subject to, and are qualified in their entirety by reference to, the detailed provisions of the Indenture, the form of which is filed as an exhibit to the Registration Statement of which this Prospectus is a part. Capitalized terms are defined in the Indenture unless otherwise defined herein. Whenever any particular section of the Indenture or any term defined therein is referred to, such section or definition is incorporated herein by reference. GENERAL The Debt Securities and the Convertible Debt Securities offered hereby will be limited to an aggregate initial offering price not to exceed U.S. $300,000,000 or its equivalent in any other currency or composite currency, determined at the applicable exchange rate at the time of sale. The Indenture does not limit the amount of Debt Securities or Convertible Debt Securities which can be issued thereunder and provides that additional Debt Securities or Convertible Debt Securities may be issued in one or more series thereunder up to the aggregate principal amount which may be authorized from time to time by the Company's Board of Directors. The Debt Securities will be unsecured senior obligations of the Company and will rank equally and ratably with all other unsecured unsubordinated indebtedness of the Company. The Convertible Debt Securities may be subordinated to the Senior Indebtedness. Reference is made to the Prospectus Supplement relating to the particular Debt Securities or Convertible Debt Securities offered thereby for the following terms, where applicable, of the Debt Securities or Convertible Debt Securities: (i) the specific designation of the Debt Securities or Convertible Debt Securities; (ii) the denominations in which such Debt Securities or Convertible Debt Securities are authorized to be issued; (iii) the aggregate principal amount of such Debt Securities or Convertible Debt Securities; (iv) the date or dates on which the principal of such Debt Securities or Convertible Debt Securities will mature or the method of determining such date or dates; (v) the price or prices (expressed as a percentage of the aggregate principal amount thereof) at which the Debt Securities or Convertible Debt Securities will be issued; (vi) the rate or rates (which may be fixed or variable) at which such Debt Securities or Convertible Debt Securities will bear interest, if any, or the method of calculating such rate or rates; (vii) the times and places where principal of, premium, if any, and interest, if any, on such Debt Securities or Convertible Debt Securities will be payable; (viii) the date, if any, after which such Debt Securities or Convertible Debt Securities may be redeemed and the redemption prices; (ix) the date or dates on which interest, if any, will be payable and the record date or dates therefor or the method by which such date or dates will be determined; (x) the period or periods within which, the price or prices at which, the currency or currencies (including currency units) in which, and the terms and conditions upon which, such Debt Securities or Convertible Debt Securities may be 10 13 redeemed, in whole or in part, at the option of the Company; (xi) the obligation, if any of the Company to redeem or purchase such Debt Securities or Convertible Debt Securities pursuant to any sinking fund or analogous provisions, upon the happening of a specified event or at the option of a holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which, such Debt Securities or Convertible Debt Securities shall be redeemed or purchased, in whole or in part, pursuant to such obligations; (xii) the terms and conditions upon which conversion of such Convertible Debt Securities will be effected, including the conversion price, the conversion period and other conversion provisions in addition to or in lieu of those described below; (xiii) the currency or currency units for which such Debt Securities or Convertible Debt Securities may be purchased or in which such Debt Securities or Convertible Debt Securities may be denominated and/or the currency or currency units in which principal of, premium, if any, and/or interest, if any, on such Debt Securities or Convertible Debt Securities will be payable and whether the Company or the holders of any such Debt Securities or Convertible Debt Securities may elect to receive payments in respect of such Debt Securities or Convertible Debt Securities in a currency or currency units other than that in which such Debt Securities or Convertible Debt Securities are stated to be payable; (xiv) if other than the principal amount thereof, the portion of the principal amount of such Debt Securities or Convertible Debt Securities which will be payable upon declaration of the acceleration of the maturity thereof or the method by which such portion shall be determined; (xv) the person to whom any interest on any such Debt Security or Convertible Debt Security shall be payable if other than the person in whose name such Debt Security or Convertible Debt Security is registered on the applicable record date; (xvi) any addition to, or modification or deletion of, any Event of Default or any covenant of the Company specified in the Indenture with respect to such Debt Securities or Convertible Debt Securities; (xvii) the application, if any, of such means of defeasance or covenant defeasance as may be specified for such Debt Securities or Convertible Debt Securities; (xviii) whether such Debt Securities or Convertible Debt Securities are to be issued in whole or in part in the form of one or more temporary or permanent global securities and, if so, the identity of the depositary for such global security or securities; (xix) whether such Convertible Debt Securities shall be subordinated and subject to the right to prior payment in full of all Senior Indebtedness; and (xx) any other special terms pertaining to such Debt Securities or Convertible Debt Securities. Unless otherwise specified in the applicable Prospectus Supplement, the Debt Securities or Convertible Debt Securities will not be listed on any securities exchange. Unless otherwise provided in the applicable Prospectus Supplement, principal and premium, if any, or interest, if any, will be payable and the Debt Securities or Convertible Debt Securities may be surrendered for payment or transferred at the offices of the Trustee as paying and authenticating agent, provided that payment of interest on Registered Securities may be made at the option of the Company by check mailed to the address of the person entitled thereto as it appears in the Security Register. Payment of Debt Securities or Convertible Debt Securities in bearer form will be made at such paying agencies outside of the United States as the Company may appoint. (Sections 301 and 1002) Unless otherwise specified in the applicable Prospectus Supplement, the Debt Securities and Convertible Debt Securities will be issued in fully registered form without coupons in denominations set forth in the Prospectus Supplement. No service charge will be made for any transfer or exchange of such Debt Securities or Convertible Debt Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. (Section 305) Where Debt Securities and Convertible Debt Securities of any series are issued in bearer from, the special restrictions and considerations, including special offering restrictions and special Federal income tax considerations, applicable to any such Debt Securities or Convertible Debt Securities and to payment on and transfer and exchange of such Debt Securities or Convertible Debt Securities will be described in the Prospectus Supplement. Bearer Debt Securities and Convertible Debt Securities will be transferrable by delivery. (Section 305) Some of the Debt Securities and Convertible Debt Securities may be issued at a discount (bearing no interest or interest at below market rates) ("Discount Securities") to be sold at a substantial discount below their stated principal amount. Federal income tax consequences and other special considerations applicable to any such Debt Securities and Convertible Debt Securities or any Debt Securities and Convertible Debt Securities which are denominated in a currency or composite currency other than United States dollars will be described in the applicable Prospectus Supplement. 11 14 The Prospectus Supplement for a particular series may indicate terms for redemption at the option of a Holder. Unless otherwise indicated in the applicable Prospectus Supplement, the covenants contained in the Indenture and the Debt Securities or Convertible Debt Securities (as the case may be) would not provide for redemption at the option of a Holder nor necessarily afford Holders thereof protection in the event of a highly leveraged or other transaction that may adversely affect such Holders. RESTRICTIVE COVENANTS Definitions. "Subsidiary" is defined to mean a corporation whose accounts are consolidated with those of the Company in accordance with generally accepted accounting principles. (Section 101) "Significant Subsidiary" is defined to mean any Subsidiary of the Company which owns a Principal Property and any Subsidiary which owns directly or indirectly stock of a Significant Subsidiary. (Section 101) "Consolidated Net Tangible Assets" is defined to mean the aggregate amount of assets (less applicable reserves and other properly deductible items) after deducting (a) all current liabilities (excluding any thereof constituting Funded Debt by reason of being renewable or extendable) and (b) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense, and other like intangibles, all as set forth on the most recent balance sheet of the Company and its consolidated subsidiaries and computed in accordance with generally accepted accounting principles. (Section 101) "Funded Debt" is defined to mean all indebtedness for money borrowed having a maturity of more than 12 months from the date as of which the amount thereof is to be determined or having a maturity of less than 12 months but by its terms being renewable or extendable beyond 12 months from such date at the option of the borrower. (Section 101) "Principal Property" is defined to mean any smelters, refineries, mines, concentrators or other facilities, located within the present 50 states of the United States of America (other than its territories or possessions), owned by the Company or any Subsidiary and the gross book value of which (without deduction of any depreciation reserves) on the date as of which the determination is being made exceeds 3% of Consolidated Net Tangible Assets, other than any such facility or portion thereof which is pollution control or other equipment or facility financed by obligations issued by a State or local government unit and other than any smelters, refineries, mines, concentrators or facilities or any portions thereof which the Board of Directors of the Company declares by resolution are not of material importance to the total business conducted by the Company and its Subsidiaries as an entirety. (Section 101) "Nonrecourse Obligations" is defined to mean indebtedness or lease payment obligations substantially related to (i) the acquisition of assets not currently owned by the Company or any of its Significant Subsidiaries or (ii) the financing of the construction or improvement of equipment, mines or facilities involving the development of properties of the Company or any of its Significant Subsidiaries, as to which the obligee with respect to such indebtedness or obligation has no recourse to the general corporate funds or the assets, in general, of the Company or any of its Significant Subsidiaries. (Section 1004) "Debt" is defined to mean notes, bonds, debentures or other similar evidences of indebtedness for money borrowed. (Section 1004) "Attributable Debt" is defined to mean as to any particular Capitalized Lease under which any Person is at the time liable, at any date as of which the amount thereof is to be determined, the total net amount of rent required to be paid by such person under such Capitalized Lease during the remaining primary term thereof, discounted from the respective due dates thereof to such date at the rate of interest per annum implicit in the terms of such Capitalized Lease, as determined in good faith by the Company, compounded semi-annually. The net amount of rent required to be paid under any such Capitalized Lease for any such period shall be the amount of the rent payable by the lessee with respect to such period, after excluding amounts required to be paid on account of maintenance, repairs, insurance, taxes, assessments, water rates and similar charges. In the case of any Capitalized Lease which is terminable by the lessee upon the payment of a penalty, such net 12 15 amount shall also include the amount of such penalty, but shall not include any rent required to be paid under such Capitalized Lease subsequent to the first date upon which it may be so terminated. (Section 101) "Senior Indebtedness" is defined to mean all Debt of the Company, including principal and interest (and premium, if any) (including, without limitation, any interest that would accrue but for the occurrence of any event specified in paragraphs (6) and (7) of "-- Events of Default") on such Debt except (i) existing subordinated Debt Securities or subordinated Convertible Debt Securities, (ii) such indebtedness as is by its terms expressly stated to be junior in right of payment to the subordinated Debt Securities or subordinated Convertible Debt Securities, and (iii) such indebtedness as is by its terms expressly stated to rank pari passu with the subordinated Debt Securities or subordinated Convertible Debt Securities. (Section 101) RESTRICTIONS ON SECURED DEBT (SECTION 1004) The Company has covenanted that it will not itself, and will not permit any Subsidiary to, incur, issue, assume or guarantee any Debt secured after the date of the Indenture by pledge of, or mortgage or other lien on ("Mortgage"), any Principal Property of the Company or any Significant Subsidiary, or any shares of stock or Debt of any Significant Subsidiary without effectively providing that the Debt Securities or Convertible Debt Securities of all series issued pursuant to the Indenture (together with, if the Company shall so determine, any other Debt of the Company or such Significant Subsidiary then existing or thereafter created which is not subordinate to the Debt Securities or Convertible Debt Securities) shall be secured equally and ratably with (or, at the option of the Company, prior to) such secured Debt, so long as such secured Debt shall be so secured, unless after giving effect thereto, the aggregate principal amount of all such secured Debt then outstanding which would otherwise be prohibited, plus all Attributable Debt of the Company and its Significant Subsidiaries in respect of sale and leaseback transactions (as defined in "-- Restrictions on Sales and Leasebacks") occurring after the date of the Indenture which would otherwise be prohibited by the covenant described in "-- Restrictions on Sales and Leasebacks", would not exceed 10% of Consolidated Net Tangible Assets. This restriction does not apply to, and there shall be excluded in computing secured Debt for the purpose of such restriction, Debt secured by: (1) Mortgages on property of, or on any shares of stock or Debt of, any corporation existing at the time such corporation becomes a Significant Subsidiary; (2) Mortgages in favor of the Company or any Significant Subsidiary; (3) Mortgages in favor of the United States of America or any State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favor of any other country, or any political subdivision thereof, to secure partial, progress, advance or other payments pursuant to any contract or statute, or Mortgages for taxes, assessments or governmental charges or levies in each case (i) not then due and delinquent or (ii) the validity of which is being contested in good faith by appropriate proceedings, and materialmen's, mechanics', carriers', workmen's, repairmen's, landlord's or other like Mortgages, or deposits to obtain the release of such Mortgages; (4) Mortgages on property, shares of stock or Debt existing at the time of acquisition thereof (including acquisition through merger or consolidation) or to secure the payment of all or any part of the purchase price or construction cost thereof or to secure any Debt incurred prior to, at the time of, or within 180 days after, the acquisition of such property or shares or Debt or the completion of any such construction for the purpose of financing all or any part of the purchase price or construction cost thereof, provided that any such Mortgage shall only extend to the property acquired or constructed or property on which the acquired or constructed property is situated; (5) Mortgages securing obligations issued by a State, territory or possession of the United States of America, or any political subdivision of any of the foregoing, to finance the acquisition or construction of property, and on which the interest is not, in the opinion of tax counsel of recognized standing or in accordance with a ruling issued by the Internal Revenue Service, includible in gross income of the holder by reason of Section 103(a) of the Internal Revenue Code (or any successor to such provision) as in 13 16 effect at the time of the issuance of such obligations, including, without limitation, Debt related to the financing of pollution control or other equipment or facilities financed by State or local government units; (6) Mortgages created in connection with a project financed, or assets acquired, with, and created to secure any Nonrecourse Obligations; (7) Production payments or other related rights of others to the output of mines, refineries, smelters, concentrators or production facilities, including project financings, with respect to any property or assets acquired, constructed or improved by the Company or a Subsidiary with the proceeds of such project financings or Mortgages to secure payment of workmen's compensation or to secure performance in connection with tenders, leases of real property, bids or contracts or to secure (or in lieu of) surety or appeal bonds and Mortgages made in the ordinary course of business for similar purposes; and (8) Any extension, renewal, refunding or replacement (or successive extensions, renewals, refundings or replacements), as a whole or in part, of any Mortgage referred to in the foregoing clauses (1) to (7), inclusive; provided, however, that (i) such extension, renewal, refunding or replacement Mortgage shall be limited to all or a part of the same property, shares of stock or Debt that secured the Mortgage extended, renewed, refunded or replaced (plus improvements on such property) and (ii) the Debt secured by such Mortgage at such time is not increased. RESTRICTIONS ON SALES AND LEASEBACKS (SECTION 1005) The Company has covenanted that it will not itself, and will not permit any Significant Subsidiary to, enter into any arrangement with any bank, insurance company or other lender or investor (not including the Company or any Significant Subsidiary) or to which any such lender or investor is a party, providing for the leasing by the Company or any such Significant Subsidiary of any Principal Property which has been or is to be sold or transferred by the Company or such Significant Subsidiary to such lender or investor or to any Person to whom funds have been or are to be advanced by such lender or investor (each, a "sale and leaseback transaction") unless, after giving effect thereto, the aggregate amount of all Attributable Debt with respect to all such transactions occurring after the date of the Indenture and existing at such time plus all secured Debt then outstanding of the Company and its Significant Subsidiaries incurred after the date of the Indenture which would otherwise be prohibited by the covenant described in "-- Restrictions on Secured Debt" above, would not exceed 10% of Consolidated Net Tangible Assets. This restriction does not apply to, and there shall be excluded from Attributable Debt in any computation under such restriction, Attributable Debt with respect to any sale and leaseback transaction if: (1) the lease in such sale and leaseback transaction is for a period, including renewals, of not in excess of three years, or (2) such sale and leaseback transaction is entered into prior to, at the time of, or within 180 days after the later of the acquisition of the Principal Property to which such sale and leaseback transaction relates or the completion of construction thereon, or (3) the lease in such sale and leaseback transaction secures or relates to obligations issued by a State, territory or possession of the United States of America, or any political subdivision of any of the foregoing, to finance the acquisition or construction of property, and on which the interest is not, in the opinion of tax counsel of recognized standing or in accordance with a ruling issued by the Internal Revenue Service, includible in gross income of the holder by reason of Section 103(a) of the Internal Revenue Code (or any successor to such provision) as in effect at the time of the issuance of such obligations, including, without limitation, Debt related to the financing of pollution control or other equipment or facilities financed by State or local government units, or (4) such sale and leaseback transaction is entered into between the Company and a Significant Subsidiary or between Significant Subsidiaries, or (5) such sale and leaseback transaction is created in connection with a project financed, or assets acquired, with, and such obligation constitutes, a Nonrecourse Obligation, or 14 17 (6) the Company or a Significant Subsidiary, within 180 days after the sale or transfer shall have been made by the Company or by any such Significant Subsidiary, applies an amount not less than the greater of (i) the net proceeds of the sale of the Principal Property sold and leased back pursuant to such arrangement or (ii) the fair market value of the Principal Property so sold and leased back at the time of entering into such arrangement (as determined by any two of the following officers of the Company: the Chairman of the Board of Directors, the President, any Vice President, the Treasurer and the Controller) to (x) the purchase of property, facilities or equipment (other than the property, facilities or equipment involved in such sale) which will constitute Principal Property or (y) the retirement of Funded Debt of the Company or any Significant Subsidiary; provided, however, that the amount to be applied to the retirement of Funded Debt of the Company or any Significant Subsidiary shall be reduced by (i) the principal amount of any Funded Debt (including the Debt Securities or Convertible Debt Securities of any series) of the Company or any Significant Subsidiary (or, if the Debt Securities or Convertible Debt Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be due and payable with respect to such series pursuant to a declaration in accordance with Section 502 of the Indenture), delivered within 180 days after such sale to the Trustee or other applicable trustee for retirement and cancellation, and (ii) the principal amount of Funded Debt, other than any Funded Debt referred to in the immediately preceding clause (i) of this proviso, voluntarily retired by the Company or a Significant Subsidiary within 180 days after such sale; and provided, further, that, notwithstanding the foregoing, no retirement referred to in this clause (y) may be effected by payment at Maturity or pursuant to any mandatory sinking fund payment or any mandatory redemption provision. SUBORDINATION The Convertible Debt Securities may be subordinated and junior in right of payment, to the extent set forth in the applicable Prospectus Supplement, to all "Senior Indebtedness" of the Company as defined in the applicable Prospectus Supplement. EVENTS OF DEFAULT (SECTION 501) The following are Events of Default with respect to Debt Securities or Convertible Debt Securities of each series: (1) default in the payment of the principal of, or any premium on, any of the Debt Securities or Convertible Debt Securities of such series as and when the same shall become due and payable either at stated maturity, upon redemption, by declaration or otherwise; or (2) default in the payment of any installment of interest, if any, upon any of the Debt Securities or Convertible Debt Securities of such series as and when it shall become due and payable, and continuance of such default for a period of 30 days; or (3) default in the payment of any sinking fund payment, when and as due and payable by the terms of the Debt Securities or Convertible Debt Securities of such series; or (4) default in the performance, or breach, of any covenant or agreement of the Company in the Indenture or the Debt Securities or Convertible Debt Securities of such series (other than a covenant or agreement a default in the performance or a breach of which is otherwise specified as an Event of Default or which has expressly been included in the Indenture and designated as being solely for the benefit of series of Debt Securities or Convertible Debt Securities other than such series), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the holders of at least 25% in principal amount of the Debt Securities or Convertible Debt Securities of such series then outstanding, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" under the Indenture; or (5) a default under any Debt in excess of $25,000,000 of the Company or any Significant Subsidiary (including a default with respect to Debt Securities or Convertible Debt Securities of any series other 15 18 than such series) or under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any such indebtedness for money borrowed by the Company or any Significant Subsidiary (including the Indenture), whether such indebtedness is existing or shall thereafter be created, which default shall have resulted in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such involuntary acceleration having been rescinded or annulled within a period of 30 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the holders of at least 25% in aggregate principal amount of the Debt Securities or Convertible Debt Securities of such series then outstanding a written notice specifying such default and requiring the Company to cause such acceleration to be rescinded or annulled and stating that such notice is a "Notice of Default" under the Indenture; provided, however, that, if such default shall be remedied or cured by the Company or waived by the holders of such indebtedness, then the Event of Default under the Indenture by reason thereof shall be deemed likewise to have been thereupon remedied, cured or waived without any action on the part of the Trustee or any of the holders; or (6) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law then or thereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Company or for all or substantially all of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 90 consecutive days; or (7) the Company shall commence a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law then or thereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Company or for all or substantially all of its property, or make any general assignment for the benefit of creditors; or (8) any other Event of Default provided with respect to Debt Securities or Convertible Debt Securities of such series. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT If an Event of Default with respect to Debt Securities or Convertible Debt Securities of any series at the time outstanding occurs and is continuing, then, and in each and every such case, unless the principal of all of the Debt Securities or Convertible Debt Securities of such series shall have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of the Debt Securities or Convertible Debt Securities of such series then outstanding, by notice in writing to the Company (and to the Trustee if given by holders), may declare the entire principal amount (or, if the Debt Securities or Convertible Debt Securities of such series are Original Issue Discount Securities (as defined in the Indenture), such portion of the principal as may be specified in the terms of such series) of all of the Debt Securities or Convertible Debt Securities of such series and any premium and interest accrued thereon to be due and payable immediately, and upon any such declaration such principal amount (or specified amount) and any premium and interest accrued thereon shall become immediately due and payable. However, at any time after a declaration of acceleration with respect to Debt Securities or Convertible Debt Securities of any series has been made, but before a judgment or decree based on such acceleration has been obtained, the Holders of a majority in principal amount of Outstanding Securities of that series may, under certain circumstances, rescind and annul such acceleration. (Section 502) For information as to waiver of defaults, see "Modification and Waiver." Reference is made to the Prospectus Supplement relating to each series of Debt Securities or Convertible Debt Securities which are Discount Securities for the particular provisions relating to acceleration of the Maturity of a portion of the principal amount of such Discount Securities upon the occurrence of an Event of Default and the continuation thereof. 16 19 The Indenture provides that, subject to the duty of the Trustee during default to act with the required standard of care, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request or direction of any of the Holders, unless such Holders shall have offered to the Trustee reasonable indemnity. (Section 603) Subject to such provisions for indemnification of the Trustee, the Holders of a majority in principal amount of the Outstanding Securities of any series will 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, or exercising any trust or power conferred on the Trustee, with respect to the Debt Securities or Convertible Debt Securities of that series. (Section 512) The Company is required to furnish to the Trustee annually a statement as to the performance by the Company of certain of its obligations under the Indenture and as to any default in such performance. (Section 1006) MODIFICATION AND WAIVER Modifications and amendments of the Indenture may be made by the Company and the Trustee with the consent of the Holders of 66 2/3% in principal amount of the Outstanding Securities of each series affected thereby (each such series voting as a single class); provided, however, that no such modification or amendment may, without the consent of the Holder of each Outstanding Security affected thereby, (a) change the Stated Maturity of the principal, or any installment of principal of or interest on, any Debt Security or Convertible Debt Security, (b) reduce the principal amount thereof, or reduce any premium thereof or change the time of payment of any premium thereon, (c) reduce the rate or change the time of payment of interest thereon, if any, (d) reduce any amount payable on redemption of any such Security (if any), (e) reduce the Overdue Rate thereof, (f) change the place or currency of payment of principal of, or any premium or interest thereon, (g) reduce the amount of principal of any Discount Security payable upon acceleration of the Maturity thereof or the amount thereof provable in bankruptcy, (h) impair, if applicable, any right of repayment at the option of the Holder, (i) impair the right to institute suit for the enforcement of any payment on or with respect to any Debt Security or Convertible Debt Security, or (j) reduce the percentage in principal amount of Outstanding Securities of any series, the consent of the Holders of which is required for modification or amendment of the Indenture or for waiver of compliance with certain provisions of the Indenture or for waiver of certain defaults, or (k) alter or impair the right of any Holder to convert Securities of any series, if applicable, at the rate and upon the terms established pursuant to the Indenture. (Section 902) The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all Debt Securities or Convertible Debt Securities of that series waive, insofar as that series is concerned, compliance by the Company with certain restrictive provisions of the Indenture. (Section 1007) The Holders of a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all Debt Securities or Convertible Debt Securities of that series waive any past default under the Indenture with respect to Debt Securities or Convertible Debt Securities of that series, except a default not theretofore cured in the payment of the principal of (or premium, if any) or interest on any Debt Securities or Convertible Debt Securities of that series or in respect of any provision which under the Indenture cannot be modified or amended without the consent of the Holder of each Outstanding Security of that series affected. (Section 513) The Indenture contains provisions permitting the Company and the Trustee to enter into one or more supplemental indentures without the consent of the Holders of any of the Debt Securities or Convertible Debt Securities in order (i) to evidence the succession of another corporation to the Company and the assumption of the covenants of the Company by a successor to the Company; (ii) to add to the covenants of the Company or surrender any right or power of the Company; (iii) to add additional Events of Default with respect to any series of Debt Securities or Convertible Debt Securities; (iv) to add to, change or eliminate any provision affecting Debt Securities or Convertible Debt Securities not yet issued; (v) to secure the Debt Securities or Convertible Debt Securities; (vi) to establish the form or terms of Debt Securities or Convertible Debt Securities; (vii) to evidence and provide for a successor Trustee; and (viii) to cure any ambiguity or correct any mistake or to correct any defect or supplement any inconsistent provisions or to make any other provisions 17 20 with respect to matters or questions arising under the Indenture, provided that such action does not adversely affect the interests of any Holder of Debt Securities or Convertible Debt Securities of any series. (Section 901) CONSOLIDATION, MERGER AND SALE OF ASSETS The Company may not consolidate or merge with or into, or transfer or lease all or substantially all its assets to, any Person, and any other Person may not consolidate or merge with or into, the Company, unless (i) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or which acquires or leases all or substantially all the assets of the Company is organized and existing under the laws of the United States, any state thereof or the District of Columbia and expressly assumes all of the Company's obligations under the Debt Securities or Convertible Debt Securities and under the Indenture, (ii) immediately after giving effect to such transaction no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing (provided that a transaction will only be deemed to be in violation of this condition (ii) as to any series of Debt Securities or Convertible Debt Securities as to which such Event of Default or such event shall have occurred and be continuing), and (iii) certain other conditions are met. SATISFACTION, DISCHARGE, AND DEFEASANCE PRIOR TO MATURITY OR REDEMPTION Covenant Defeasance of any Series If the Company shall deposit with the Trustee, in trust, at or before maturity or redemption of the Debt Securities or Convertible Debt Securities of any series, money and/or Government Obligations in such amounts and maturing at such times such that the proceeds of such obligations to be received upon the respective maturities and interest payment dates of such obligations will provide funds sufficient, without reinvestment, in the opinion of a nationally recognized firm of independent public accountants, to pay when due the principal of (and premium, if any) and each installment of principal of (and premium, if any) and interest on such series of Debt Securities or Convertible Debt Securities at the Stated Maturity of such principal or installment of principal or interest, as the case may be, then the Company may omit to comply with certain of the terms of the Indenture with respect to that series of Debt Securities or Convertible Debt Securities, including the restrictive covenants described above, and the Events of Default described in clauses (4) and (5) under "Events of Default" above shall not apply. Defeasance of Debt Securities or Convertible Debt Securities of any series is subject to the satisfaction of certain conditions, including among others: (1) the absence of an Event of Default or event which, with notice or lapse of time, would become an Event of Default at the date of the deposit, (2) the delivery to the Trustee by the Company of an Opinion of Counsel to the effect that Holders of the Debt Securities or Convertible Debt Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to Federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred, (3) such covenant defeasance will not cause any Debt Securities or Convertible Debt Securities of such series then listed on any nationally recognized securities exchange to be delisted, (4) that such covenant defeasance will not result in a breach of, or constitute a default under, any instrument by which the Company is bound and (5) such covenant defeasance shall not cause the Trustee for the Securities of such series to have conflicting interest for purposes of the Trust Indenture Act with respect to any securities of the Company. If indicated in the Prospectus Supplement relating to a series of Debt Securities or Convertible Debt Securities, in addition to the obligations of the United States of America or obligations guaranteed by the United States of America, Government Obligations may include obligations of the government, and obligations guaranteed by such government, issuing the currency or currency unit in which Debt Securities or Convertible Debt Securities of such series are payable. (Section 1304) Defeasance of any Series Upon the deposit of money or securities as contemplated in the preceding paragraph and the satisfaction of certain other conditions, the Company may also omit to comply with its obligation duly and punctually to 18 21 pay the principal of (and premium, if any) and interest on a particular series of Debt Securities or Convertible Debt Securities, and any Events of Default with respect thereto shall not apply, and thereafter, the Holders of Debt Securities or Convertible Debt Securities of such series shall be entitled only to payment out of the money or securities deposited with the Trustee. (Section 1304) Such conditions include among others: (1) the absence of an Event of Default or event which, with notice or lapse of time, would become an Event of Default at the date of the deposit, (2) the delivery to the Trustee by the Company of an Opinion of Counsel, which refers to or is based on a ruling of the Internal Revenue Service or a change in the applicable Federal income tax law occurring after the date of the Indenture, to the effect that Holders of the Debt Securities or Convertible Debt Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and the satisfaction, discharge and defeasance, and will be subject to Federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred, (3) such defeasance will not cause any Debt Securities or Convertible Debt Securities of such series then listed on any nationally recognized securities exchange to be delisted, (4) that such defeasance will not result in a breach of, or constitute a default under, any instrument by which the Company is bound and (5) such defeasance shall not cause the Trustee for the Securities of such series to have a conflicting interest for the purpose of the Trust Indenture Act with respect to any securities of the Company. (Section 1304) Federal Income Tax Consequences Under current Federal income tax law, the deposit and defeasance described above under "Covenant Defeasance of any Series" will not result in a taxable event to any Holder of Debt Securities or Convertible Debt Securities or otherwise affect the Federal income tax consequences of an investment in Debt Securities or Convertible Debt Securities of any series. The Federal income tax treatment of the deposit and defeasance described above under "Defeasance of any Series" is not clear. A deposit and defeasance may be treated as a taxable exchange of such Debt Securities or Convertible Debt Securities for beneficial interests in the trust consisting of the deposited money or securities. In that event, a Holder of Debt Securities or Convertible Debt Securities would be required to recognize gain or loss equal to the difference between the Holder's adjusted basis for the Debt Securities or Convertible Debt Securities and the fair market value of the Holder's beneficial interest in such trust. Thereafter, such Holder would be required to include in income a share of the income, gain, and loss of the trust. As described above, it is a condition to such a deposit and defeasance that the Company obtain an opinion of tax counsel to the effect that such deposit and defeasance will not alter the Holder's tax consequences that would have been applicable in the absence of the deposit and defeasance. Purchasers of the Debt Securities or Convertible Debt Securities should consult their own advisers with respect to the tax consequences to them of such deposit and defeasance, including the applicability and effect of tax laws other than Federal income tax law. CONVERTIBLE DEBT SECURITIES The following provisions will apply to Convertible Debt Securities, unless otherwise provided in the applicable Prospectus Supplement for such Convertible Debt Securities. The holder of any Convertible Debt Securities will have the right exercisable at any time prior to maturity, or prior to such other date as may be specified in the applicable Prospectus Supplement, unless previously redeemed by the Company, to convert such Convertible Debt Securities into shares of Common Stock or Preferred Stock of the Company at the conversion price set forth in the applicable Prospectus Supplement, subject to adjustment. The holder of Convertible Debt Securities may convert any portion thereof which is $1,000 or any integral multiple of $1,000. In the case of Convertible Debt Securities called for redemption, conversion rights will expire at the close of business on the date fixed for the redemption unless the Company shall default in payment of the redemption price, except that in the case of redemption at the option of the holder thereof, if applicable, the conversion right will terminate upon receipt of written notice of the exercise of such option. (Section 1402) In certain events, the conversion price will be subject to adjustment as set forth in the applicable Prospectus Supplement. Fractional shares of Common Stock or Preferred Stock will not be issued upon conversion, but, 19 22 in lieu thereof, the Company will pay a cash adjustment based on the then current market price for the Common Stock or Preferred Stock. (Section 1406) Subordination of Convertible Debt Securities The obligation of the Company to make payment on account of the principal of, and premium, if any, and interest on the Convertible Debt Securities may be subordinated and junior in right of payment, to the extent and in the manner set forth in the Prospectus Supplement relating to any Convertible Debt Securities, to the prior payment in full of all Senior Indebtedness of the Company. In the event (a) of any insolvency or bankruptcy proceedings, or any receivership, dissolution, winding-up total or partial liquidation, reorganization or other similar proceedings in respect of the Company or a substantial part of its property, whether voluntary or involuntary, or (b) that (i) a default shall have occurred with respect to the payment of principal of (and premium, if any) or any interest on or other monetary amounts due and payable on any Senior Indebtedness in an amount in excess of $25,000,000 or (ii) there shall have occurred an event of default (other than a default in the payment of principal, premium, if any, or interest, or other monetary amounts due and payable) in respect of any Senior Indebtedness, as defined therein or in the instrument under which the same is outstanding, permitting the holder or holders thereof to accelerate the maturity thereof and such default or event of default shall not have been cured or waived or shall not have ceased to exist, or (iii) separately with respect to each series of Securities, if immediately after giving effect to any payment of principal, premium, if any, or interest on such series of Securities there would occur an event of default (other than a default in the payment of principal or interest or other monetary amounts due and payable) in respect of any Senior Indebtedness, as defined therein or in the instrument under which the same is outstanding, permitting the holder or holders thereof to accelerate the maturity thereof and such default or event of default shall not have been cured or waived or shall not have ceased to exist, or (c) that the principal of and accrued interest on any subordinated Convertible Debt Securities shall have been declared due and payable upon an Event of Default pursuant to the Indenture and such declaration shall not have been rescinded and annulled as provided therein, then the holders of all Senior Indebtedness shall first be entitled to receive payment of the full amount unpaid thereon, or provision shall be made, in accordance with the relevant Senior Indebtedness, for such payment in money or money's worth, before the holders of any of the subordinated Convertible Debt Securities are entitled to receive any payment on account of the principal of (and premium, if any) or any interest on the indebtedness evidenced by such subordinated Convertible Debt Securities or any cash payments to repurchase such subordinated Convertible Debt Securities at the option of the holders thereof or otherwise. By reason of such subordination, in the event of insolvency, creditors of the Company (including holders of subordinated Convertible Debt Securities) who are not holders of Senior Indebtedness may recover less, ratably, than holders of Senior Indebtedness. REGARDING THE TRUSTEE The Indenture, by reference to Section 315 of the Trust Indenture Act, provides that, except during the continuance of an Event of Default, the Trustee shall perform only such duties as are specifically set forth in the Indenture. During the continuance of any Event of Default, the Trustee shall exercise such of the rights and powers vested in it under the Indenture and use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. The Trustee may acquire and hold Debt Securities or Convertible Debt Securities and, subject to certain conditions, otherwise deal with the Company as if it were not the Trustee under the Indenture. (Section 605) The Company maintains deposit accounts and conducts other banking transactions with the Trustee in the ordinary course of the Company's business. 20 23 DESCRIPTION OF WARRANTS DEBT WARRANTS The Company may issue, together with other Securities or separately, Debt Warrants for the purchase of Debt Securities or Convertible Debt Securities. The Debt Warrants are to be issued under Debt Warrant Agreements (each a "Debt Warrant Agreement") to be entered into between the Company and a bank or trust company, as Debt Warrant Agent (the "Debt Warrant Agent"), all as to be set forth in a Prospectus Supplement relating to Debt Warrants. A copy of the form of Debt Warrant Agreement, including the form of Warrant Certificates representing the Debt Warrants (the "Debt Warrant Certificates"), reflecting the alternative provisions to be included in the Debt Warrant Agreements that will be entered into with respect to particular offerings of Debt Warrants, is filed as an exhibit to the Registration Statement of which this Prospectus forms part. The following summaries of certain provisions of the Debt Warrant Agreement and the Debt Warrant Certificates do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all the provisions of the Debt Warrant Agreement and the Debt Warrant Certificates, respectively, including the definitions therein of certain capitalized terms not defined herein. General. Reference is made to the applicable Prospectus Supplement for the terms of Debt Warrants in respect of which this Prospectus is being delivered, the Debt Warrant Agreement relating to such Debt Warrants and the Debt Warrant Certificates representing such Debt Warrants, including the following: (1) the designation, aggregate principal amount and terms of the Debt Securities or Convertible Debt Securities purchasable upon exercise of such Debt Warrants and the procedures and conditions relating to the exercise of such Debt Warrants; (2) the designation and terms of any related Debt Securities or Convertible Debt Securities with which such Debt Warrants are issued and the number of such Debt Warrants issued with each such Debt Security or Convertible Debt Security; (3) the date, if any, on and after which such Debt Warrants and the related Debt Securities or Convertible Debt Securities will be separately transferable; (4) the principal amount of Debt Securities or Convertible Debt Securities purchasable upon exercise of each Debt Warrant and the price at which such principal amount of Debt Securities or Convertible Debt Securities may be purchased upon such exercise; (5) the date on which the right to exercise such Debt Warrants shall commence and the date on which such right shall expire; (6) if the Debt Securities or Convertible Debt Securities purchasable upon exercise of such Debt Warrants are original issue discount Debt Securities, a discussion of Federal income tax considerations applicable thereto; and (7) whether the Debt Warrants represented by the Debt Warrant Certificates will be issued in registered or bearer form, and, if registered, where they may be transferred and registered. Debt Warrant Certificates will be exchangeable for new Debt Warrant Certificates of different denominations and Debt Warrants may be exercised at the corporate trust office of the Debt Warrant Agent or any other office indicated in the applicable Prospectus Supplement. Prior to the exercise of their Debt Warrants, holders of Debt Warrants will not have any of the rights of holders of the Debt Securities or Convertible Debt Securities purchasable upon such exercise and will not be entitled to payments of principal of (and premium, if any) or interest, if any, on the Debt Securities or Convertible Debt Securities purchasable upon such exercise. Exercise of Debt Warrants. Each Debt Warrant will entitle the holder to purchase for cash such principal amount of Debt Securities or Convertible Debt Securities at such exercise price as shall in each case be set forth in, or be determinable as set forth in, the applicable Prospectus Supplement relating to the Debt Warrants offered thereby. Debt Warrants may be exercised at any time up to 5:00 p.m. New York City time on the expiration date set forth in the applicable Prospectus Supplement. After 5:00 p.m. New York City time on the expiration date, unexercised Debt Warrants will become void. Debt Warrants may be exercised as set forth in the applicable Prospectus Supplement relating to the Debt Warrants. Upon receipt of payment and the Debt Warrant Certificate properly completed and duly executed at the corporate trust office of the Debt Warrant Agent or any other office indicated in the applicable Prospectus Supplement, the Company will, as soon as practicable, forward the Debt Securities or Convertible Debt Securities purchasable upon such exercise. If less than all of the Debt Warrants represented by such 21 24 Debt Warrant Certificate are exercised, a new Debt Warrant Certificate will be issued for the remaining amount of Debt Warrants. COMMON STOCK WARRANTS The Company may issue, together with other securities or separately, Common Stock Warrants for the purchase of Common Stock. The Common Stock Warrants are to be issued under Common Stock Warrant Agreements (each a "Common Stock Warrant Agreement") to be entered into between the Company and a bank or trust company, as Common Stock Warrant Agent (the "Common Stock Warrant Agent"), all as to be set forth in the applicable Prospectus Supplement relating to Common Stock Warrants in respect of which this Prospectus is being delivered. A copy of the form of Common Stock Warrant Agreement, including the form of Warrant Certificates representing the Common Stock Warrants (the "Common Stock Warrant Certificates") reflecting the provisions to be included in the Common Stock Warrant Agreements that will be entered into with respect to particular offerings of Common Stock Warrants, is filed as an exhibit to the Registration Statement of which this Prospectus forms part. The following summaries of certain provisions of the Common Stock Warrant Agreement and the Common Stock Warrant Certificates do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all the provisions of the Common Stock Warrant Agreement and the Common Stock Warrant Certificates, respectively, including the definitions therein of certain capitalized terms not defined herein. General. Reference is made to the applicable Prospectus Supplement for the terms of Common Stock Warrants in respect of which this Prospectus is being delivered, the Common Stock Warrant Agreement relating to such Common Stock Warrants and the Common Stock Warrant Certificates representing such Common Stock Warrants, including the following: (1) the offering price of such Common Stock Warrants, if any; (2) the procedures and conditions relating to the exercise of such Common Stock Warrants; (3) the number of shares of Common Stock purchasable upon exercise of each Common Stock Warrant and the initial price at which such shares may be purchased upon exercise; (4) the date on which the right to exercise such Common Stock Warrants shall commence and the date on which such right shall expire; (5) a discussion of U.S. Federal income tax considerations applicable to the exercise of Common Stock Warrants; (6) call provisions of such Common Stock Warrants, if any; and (7) any other terms of the Common Stock Warrants. Prior to the exercise of their Common Stock Warrants, holders of the Common Stock Warrants will not have any of the rights of holders of the Common Stock purchasable upon such exercise, and will not be entitled to any dividend payments on the Common Stock purchasable upon such exercise. Exercise of Stock Warrants. Each Common Stock Warrant will entitle the holder to purchase for cash such number of shares of Common Stock at such exercise price as shall in each case be set forth in, or be determinable as set forth in, the applicable Prospectus Supplement relating to the Common Stock Warrants offered thereby. Unless otherwise specified in the applicable Prospectus Supplement, Common Stock Warrants may be exercised at any time up to 5:00 p.m. New York City time on the expiration date set forth in the applicable Prospectus Supplement. After 5:00 p.m. New York City time on the expiration date, unexercised Common Stock Warrants will become void. Common Stock Warrants may be exercised as to be set forth in the applicable Prospectus Supplement relating to the Common Stock Warrants in respect of which this Prospectus is being delivered. Upon receipt of payment and the Common Stock Warrant Certificates properly completed and duly executed at the corporate trust office of the Common Stock Warrant Agent or any other office indicated in the applicable Prospectus Supplement, the Company will, as soon as practicable, forward a certificate representing the number of shares of Common Stock purchasable upon such exercise. If less than all of the Common Stock Warrants represented by such Common Stock Warrant Certificate are exercised, a new Common Stock Warrant Certificate will be issued for the remaining amount of Common Stock Warrants. Antidilution Provisions. Unless otherwise specified in the applicable Prospectus Supplement, the exercise price payable and the number of shares purchasable upon the exercise of each Common Stock Warrant will be subject to adjustment in certain events, including (1) the issuance of a stock dividend to holders of Common Stock or a combination, subdivision or reclassification of Common Stock; (2) the 22 25 issuance of rights, warrants or options to all holders of Common Stock entitling the holders thereof to purchase Common Stock for an aggregate consideration per share less than the current market price per share of the Common Stock; or (3) any distribution by the Company to the holders of its Common Stock of evidences of indebtedness of the Company or of assets (excluding cash dividends or distributions payable out of capital surplus and dividends and distributions referred to in (1) above). No fractional shares will be issued upon exercise of Common Stock Warrants, but the Company will pay the cash value of any fractional shares otherwise issuable. PREFERRED STOCK WARRANTS The Company may issue, together with other securities or separately, Preferred Stock Warrants for the purchase of Preferred Stock or Convertible Preferred Stock. The Preferred Stock Warrants are to be issued under Preferred Stock Warrant Agreements (each a "Preferred Stock Warrant Agreement") to be entered into between the Company and a bank or trust company, as Preferred Stock Warrant Agent (the "Preferred Stock Warrant Agent"), all as to be set forth in the applicable Prospectus Supplement relating to the Preferred Stock Warrants in respect of which this Prospectus is being delivered. A copy of the form of Preferred Stock Warrant Agreement, including the form of Warrant Certificates representing the Preferred Stock Warrants (the "Preferred Stock Warrant Certificates") reflecting the provisions to be included in the Preferred Stock Warrant Agreements that will be entered into with respect to particular offerings of Preferred Stock Warrants, is filed as an exhibit to the Registration Statement of which this Prospectus forms part. The following summaries of certain provisions of the Preferred Stock Warrant Agreement and the Preferred Stock Warrant Certificates do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all the provisions of the Preferred Stock Warrant Agreement and the Preferred Stock Warrant Certificates, respectively, including the definitions therein of certain capitalized terms not defined herein. General. Reference is made to the applicable Prospectus Supplement for the terms of Preferred Stock Warrants in respect of which this Prospectus is being delivered, the Preferred Stock Warrant Agreement relating to such Preferred Stock Warrants and the Preferred Stock Warrant Certificates representing such Preferred Stock Warrants, including the following: (1) the offering price of such Preferred Stock Warrants, if any; (2) the procedures and conditions relating to the exercise of such Preferred Stock Warrants; (3) the number of shares of Preferred Stock or Convertible Preferred Stock purchasable upon exercise of such Preferred Stock Warrant and the initial price at which such shares may be purchased upon exercise; (4) the date on which the right to exercise such Preferred Stock Warrants shall commence and the date on which such right shall expire; (5) a discussion of the U.S. Federal income tax considerations applicable to the exercise of Preferred Stock Warrants; (6) call provisions of such Preferred Stock Warrants, if any; and (7) any other terms of the Preferred Stock Warrants. Prior to the exercise of their Preferred Stock Warrants, holders of Preferred Stock Warrants will not have any of the rights of holders of the Preferred Stock or Convertible Preferred Stock purchasable upon such exercise, and will not be entitled to any dividend payments on the Preferred Stock or Convertible Preferred Stock purchasable upon such exercise. Exercise of Stock Warrants. Each Preferred Stock Warrant will entitle the holder to purchase for cash such number of shares of Preferred Stock or Convertible Preferred Stock at such exercise price as shall in each case be set forth in, or be determinable as set forth in, the applicable Prospectus Supplement relating to the Preferred Stock Warrants offered thereby. Unless otherwise specified in the applicable Prospectus Supplement, Preferred Stock Warrants may be exercised at any time up to 5:00 p.m. New York City time on the expiration date set forth in the applicable Prospectus Supplement. After 5:00 p.m. New York City time on the expiration date, unexercised Preferred Stock Warrants will become void. Preferred Stock Warrants may be exercised as to be set forth in the applicable Prospectus Supplement relating to the Preferred Stock Warrants in respect of which this Prospectus is being delivered. Upon receipt of payment and the Preferred Stock Warrant Certificates properly completed and duly executed at the corporate trust office of the Preferred Stock Warrant Agent or any other office indicated in the applicable Prospectus Supplement, the Company will, as soon as practicable, forward a certificate representing the number of shares 23 26 of Preferred Stock purchasable upon such exercise. If less than all of the Preferred Stock Warrants represented by such Preferred Stock Warrant Certificate are exercised, a new Preferred Stock Warrant Certificate will be issued for the remaining amount of Preferred Stock Warrants. CURRENCY WARRANTS The Company may issue, together with Debt Securities or Debt Warrants or separately, Currency Warrants either in the form of Currency Put Warrants entitling the holders thereof to receive from the Company the Cash Settlement Value in U.S. dollars of the right to sell a specified amount of a specified foreign currency or currency units for a specified amount of U.S. dollars, or in the form of Currency Call Warrants entitling the holders thereof to receive from the Company the Cash Settlement Value in U.S. dollars of the right to purchase a specified amount of a specified foreign currency or currency units for a specified amount of U.S. dollars. The spot exchange rate of the applicable Base Currency, upon exercise, as compared to the U.S. dollar, will determine whether the Currency Warrants have a Cash Settlement Value on any given day prior to their expiration. The Currency Warrants are to be issued under a Currency Warrant Agreement to be entered into between the Company and a bank or trust company, as Currency Warrant Agent (the "Currency Warrant Agent"), all as to be set forth in the applicable Prospectus Supplement. A copy of the form of Currency Warrant Agreement, including the forms of global Warrant Certificates representing the Currency Put Warrants and Currency Call Warrants (the "Currency Warrant Certificates"), reflecting the provisions to be included in the Currency Warrant Agreement that will be entered into with respect to particular offerings of Currency Warrants, is filed as an exhibit to the Registration Statement of which this Prospectus forms part. The description of the Currency Warrants contained herein and the following summaries of certain provisions of the Currency Warrant Agreement and the Currency Warrant Certificates do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all the provisions of the Currency Warrant Agreement and the Currency Warrant Certificates, respectively, including the definitions therein of certain capitalized terms not defined herein. General. Reference is made to the applicable Prospectus Supplement for the terms of Currency Warrants in respect of which this Prospectus is being delivered, the Currency Warrant Agreement relating to such Currency Warrants and the Currency Warrant Certificates representing such Currency Warrants, including the following: (1) whether such Currency Warrants will be Currency Put Warrants, Currency Call Warrants, or both; (2) the formula for determining the Cash Settlement Value, if any, of each Currency Warrant; (3) the procedures and conditions relating to the exercise of such Currency Warrants; (4) the circumstances which will cause the Currency Warrants to be deemed to be automatically exercised; (5) any minimum number of Currency Warrants which must be exercised at any one time, other than upon automatic exercise; and (6) the date on which the right to exercise such Currency Warrants will commence and the date on which such right will expire. Book-Entry Procedures and Settlement. Except as may otherwise be provided in the applicable Prospectus Supplement, the Currency Warrants will be issued in the form of global Currency Warrant Certificates, registered in the name of a depositary or its nominee. Holders will not be entitled to receive definitive certificates representing Currency Warrants. A holder's ownership of a Currency Warrant will be recorded on or through the records of the brokerage firm or other entity that maintains such holder's account. In turn, the total number of Currency Warrants held by an individual brokerage firm for its clients will be maintained on the records of the depositary in the name of such brokerage firm or its agent. Transfer of ownership of any Currency Warrant will be effected only through the selling holder's brokerage firm. Exercise of Currency Warrants. Each Currency Warrant will entitle the holder to receive the Cash Settlement Value of such Currency Warrant on the applicable Exercise Date, in each case as such terms will be defined in the applicable Prospectus Supplement. If not exercised prior to 3:00 p.m., New York City time, on the fifth New York Business Day preceding the expiration date, Currency Warrants will be deemed automatically exercised on the expiration date. 24 27 CORPORATE PROVISIONS CERTIFICATE OF INCORPORATION AND BY-LAWS The Company's Restated Certificate of Incorporation (the "Certificate") and By-laws ("By-laws") provide for the classification of the Company's Board of Directors into three classes to be elected to staggered three-year terms; limitations on the shareholders' ability to nominate individuals for election as directors; and the inclusion of provisions which require that special meetings of shareholders may only be called by the Chairman of the Board, the President or the Board pursuant to a resolution approved by a majority of the entire Board. The Certificate also provides that the affirmative vote of the holders of at least 80% of the outstanding shares of all classes of capital stock entitled to vote, considered as one class, is required to authorize the Company to enter into certain transactions with any individual, corporation or other person that is the beneficial owner of more than 10% of the outstanding shares of any class of capital stock of the Company. Beneficial ownership of shares by a person includes shares which such person has the right to acquire by agreement or by exercise of warrants, options or other rights, shares so owned by others with which such person has an agreement with respect to the acquisition, holding, voting or disposition of Asarco capital stock or assets, or shares owned by "affiliates" or "associates" of such person (as such terms are defined in the rules and regulations of the Commission). The transactions with a 10% beneficial owner that are subject to such special shareholder approval requirements include: (a) any merger or consolidation of the Company or of any subsidiary of the Company with or into such beneficial owner, (b) any sale, lease, exchange or other disposition of all or any material part of the assets of the Company or of any subsidiary of the Company to or with such beneficial owner, and (c) any issuance or transfer of securities of the Company to such beneficial owner. The special shareholder approval described in this paragraph does not apply to any agreement for the merger of any subsidiary of the Company with the Company if the Company is the surviving corporation. No amendment to the provisions of the Company's Certificate outlined in this paragraph may be made without the affirmative vote of the holders of at least 80% of the outstanding shares of all classes of voting stock entitled to vote, considered as one class. In addition to any vote required by law or by provisions outlined in the preceding paragraph, the Certificate provides that a majority of the Continuing Directors (as defined) of the Company must approve certain transactions, including transactions between the Company and any person (or any affiliate or associate of such person) who at the time of the transaction or during the preceding two years was the beneficial owner of 10% or more of the voting stock of the Company or who has announced the intention of becoming the beneficial owner of such stock (such person is referred to as an "interested shareholder"). A "Continuing Director" is defined to include the current members of the Board of Directors and any future members who are not affiliates or associates of an interested shareholder at the time of the transaction and who either became a member of the Board before the interested shareholder became or threatened to become a beneficial owner of 10% of the voting stock or who was nominated or elected by a majority of the other Continuing Directors. The transactions with an interested shareholder that are subject to the approval of the Continuing Directors include: (a) the sale or other disposal of assets or securities to an interested shareholder or any other arrangement for the benefit of an interested shareholder where the assets or securities sold or disposed of have a fair market value of more than $10,000,000 or 1% of the book value of the Company's consolidated total assets; (b) any arrangement pursuant to which the interested shareholder or parties related to such interested shareholder would have any management responsibility over the Company's affairs, other than as a director; (c) the adoption of any plan or proposal for the liquidation or dissolution of the Company or any amendment to the Company's By-laws; and (d) any reclassification of securities, recapitalization or other transaction which has the effect, directly or indirectly, of increasing an interested shareholder's proportionate share of the outstanding capital stock of the Company or a subsidiary. No amendment to the provision of the Company's Certificate outlined in this paragraph may be made without the affirmative vote of the holders of at least 80% of the outstanding voting stock of the Company and the holders of at least a majority of the voting stock who are not affiliated or associated with the interested shareholder. By act of the Continuing Directors, the Board is empowered to waive the requirement that such 80% approval and majority approval be obtained. 25 28 The Company's Board of Directors believes that the provisions described above will help assure that all of the Company's shareholders will be treated similarly if certain kinds of business combinations are effected. However, these provisions also may have the effect of deterring hostile takeovers or delaying or preventing changes in control or management of the Company, and may make it more difficult to accomplish certain transactions that are opposed by the incumbent Board of Directors. NEW JERSEY LAW AND OTHER LIMITATIONS UPON TRANSACTIONS WITH "INTERESTED SHAREHOLDERS" The New Jersey Business Corporation Act provides that in determining whether a proposal or offer to acquire a corporation is in the best interest of the corporation, the Board of Directors may, in addition to considering the effects of any action on shareholders, consider any of the following: (a) the effects of the proposed action on the corporation's employees, suppliers, creditors and customers, (b) the effects on the community in which the corporation operates and (c) the long-term as well as short-term interests of the corporation and its shareholders, including the possibility that these interests may best be served by the continued independence of the corporation. The statute further provides that if, based on these factors, the Board of Directors determines that any such offer is not in the best interest of the corporation, it may reject the offer. These provisions may make it more difficult for a shareholder to challenge the Board of Directors' rejection of, and may facilitate the Board of Directors' rejection of, an offer to acquire the Company. The Company is also subject to the New Jersey Shareholders Protection Act (the "Protection Act"), which prohibits certain New Jersey corporations from engaging in business combinations (including mergers, consolidations, significant asset dispositions and certain stock issuances) with any Interested Shareholder (defined to include, among others, any person that becomes a beneficial owner of 10% or more of the affected corporation's voting power) for five years after such person becomes an Interested Shareholder, unless the business combination is approved by the Board of Directors prior to the date the shareholder became an Interested Shareholder. In addition, the Protection Act prohibits any business combination at any time with an Interested Shareholder other than a transaction that (i) is approved by the Board of Directors prior to the date the Interested Shareholder became an Interested Shareholder, or (ii) is approved by the affirmative vote of the holders of two-thirds of the voting stock not beneficially owned by the Interested Shareholder, or (iii) satisfies certain "fair price" and related criteria. LIMITATION OF LIABILITY AND INDEMNIFICATION MATTERS The Company has a shareholder-approved By-law provision requiring it to indemnify its directors and officers to the fullest extent permitted in certain circumstances, to advance expenses, to maintain insurance and to follow certain other procedures. Provisions of the Certificate eliminate the personal monetary liability of directors and officers for breaches of duty, except for (i) breaches of such person's duty of loyalty, (ii) those instances where such person is found not to have acted in good faith or in knowing violation of law and (iii) those instances where such person received an improper personal benefit as the result of such breach. TRANSFER AGENT The transfer agent for the Common Stock is The Bank of New York. PLAN OF DISTRIBUTION GENERAL The Company and the Selling Stockholder may sell Securities to or through underwriters, and also may sell Securities directly to other purchasers or through agents. The distribution of the Securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. 26 29 In connection with the sale of Securities, underwriters may receive compensation from the Company or from purchasers of Securities for whom they may act as agents in the form of discounts, concessions or commissions. Underwriters, dealers and agents that participate in the distribution of Securities may be deemed to be underwriters, and any discounts or commissions received by them from the Company and any profit on the resale of Securities by them may be deemed to be underwriting discounts and commissions under the Act. Any such underwriter or agent will be identified, and any such compensation received from the Company will be described, in the applicable Prospectus Supplement. The Preferred Stock, the Convertible Debt Securities, the Debt Securities, the Depositary Shares and the Warrants will each be a new issue of Securities ("New Issues") with no established trading market. Underwriters and agents to whom New Issues are sold by the Company for public offering and sale may make a market in such New Issues, but such underwriters and agents will not be obligated to do so and may discontinue any market making at any time without notice. No assurance can be given as to the liquidity of the trading market for the New Issues. Under agreements which may be entered into by the Company, underwriters, dealers and agents who participate in the distribution of Securities may be entitled to indemnification by the Company against certain liabilities, including liabilities under the Act, or to contribution with respect to payments required to be made in respect thereof. DELAYED DELIVERY ARRANGEMENTS If so indicated in the applicable Prospectus Supplement, the Company will authorize underwriters or other persons acting as the Company's agents to solicit offers by certain institutions to purchase Securities from the Company pursuant to contracts providing for payment and delivery on a future date. Institutions with which such contracts may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and others, but in all cases such institutions must be approved by the Company. The obligations of any purchaser under any such contract will be subject to the condition that the purchase of the Securities shall not at the time of delivery be prohibited under the laws of the jurisdiction to which such purchaser is subject. The underwriters and such other persons will not have any responsibility in respect of the validity or performance of such contracts. EXPERTS The financial statements and financial statement schedules included in the latest Annual Report of the Company on Form 10-K incorporated herein by reference, have been audited by Coopers & Lybrand, independent accountants, as stated in their report included in such Form 10-K, and have been incorporated by reference herein in reliance upon such report given upon the authority of that firm as experts in accounting and auditing. With respect to any unaudited interim financial information included in the Company's Quarterly Reports on Form 10-Q, that are or will be incorporated herein by reference, Coopers & Lybrand applies limited procedures in accordance with professional standards for reviews of such information. As stated in any of its reports that are included in the Company's Quarterly Reports on Form 10-Q that are or will be incorporated herein by reference, Coopers & Lybrand did not audit and did not express an opinion on such interim financial information. Accordingly, the degree of reliance on any of its reports on such information should be restricted in light of the limited nature of the review procedures applied. Coopers & Lybrand has advised the Company that it is not subject to the liability provisions of Section 11 of the Act for any of its reports on such unaudited interim financial information because those reports are not "reports" or a "part" of the Registration Statement prepared or certified by an accountant within the meaning of Sections 7 and 11 of the Act. 27 30 LEGAL MATTERS The validity of the issuance of the Securities offered hereby will be passed upon for the Company by White & Case, New York, New York, and certain legal matters will be passed upon by Augustus B. Kinsolving, General Counsel of the Company, and for the underwriters, if any, by Cravath, Swaine & Moore, New York, New York. 28 31 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. Expenses in connection with the issuance of the securities being registered hereby are estimated as follows: Registration fee...................................................... $217,022.89 Accounting fees and expenses.......................................... 100,000.00* Legal fees and expenses............................................... 250,000.00* Blue Sky and Legal Investment fees and expenses....................... 5,000.00* Transfer Agent's fees and expenses.................................... 5,000.00* Printing expenses..................................................... 110,000.00* Miscellaneous......................................................... 2,977.11* ----------- Total............................................................ $690,000.00* ==========
- --------------- * Subject to future contingencies. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Article 9 of the Certificate of Incorporation of the Company provides as follows: "9. This corporation shall indemnify to the full extent permitted by law any person made, or threatened to be made, a party to any pending, threatened or completed civil, criminal, administrative or arbitrative action, suit or proceeding and any appeal therein (and any inquiry or investigation which could lead to such action, suit or proceeding) by reason of the fact that he is or was a director, officer or employee of this corporation or serves or served any other enterprise as a director, officer or employee at the request of this corporation. Such right of indemnification shall inure to the benefit of the legal representative of any such person." In April 1987, the Company adopted and its shareholders approved a By-law amendment which requires it to indemnify directors and officers in certain circumstances, to advance certain expenses, to obtain indemnification insurance and to follow specific procedures for determining whether a director or officer has met applicable standards of conduct. The By-law amendment also establishes a statute of limitations for certain actions against directors and officers. These provisions in the Certificate of Incorporation and By-laws are permitted under Section 14A:3-5 of the New Jersey Business Corporation Act, set forth below. Section 14A:3-5 of the New Jersey Business Corporation Act governs the indemnification of directors, officers and employees of the Company. The following is the text of the Section which became effective February 4, 1989: "(1) As used in this section, (a) "Corporate agent" means any person who is or was a director, officer, employee or agent of the indemnifying corporation or of any constituent corporation absorbed by the indemnifying corporation in a consolidation or merger and any person who is or was a director, officer, trustee, employee or agent of any other enterprise, serving as such at the request of the indemnifying corporation, or of any such constituent corporation, or the legal representative of any such director, officer, trustee, employee or agent; (b) "Other enterprise" means any domestic or foreign corporation, other than the indemnifying corporation, and any partnership, joint venture, sole proprietorship, trust or other enterprise, whether or not for profit, served by a corporate agent; II-1 32 (c) "Expenses" means reasonable costs, disbursements and counsel fees; (d) "Liabilities" means amounts paid or incurred in satisfaction of settlements, judgments, fines and penalties; (e) "Proceeding" means any pending, threatened or completed civil, criminal, administrative or arbitrative action, suit or proceeding, and any appeal therein and any inquiry or investigation which could lead to such action, suit or proceeding; and (f) References to "other enterprises" include employee benefit plans; references to "fines" include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the indemnifying corporation" include any service as a corporate agent which imposes duties on, or involves services by, the corporate agent with respect to an employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner the person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this section. "(2) Any corporation organized for any purpose under any general or special law of this State shall have the power to indemnify a corporate agent against his expenses and liabilities in connection with any proceeding involving the corporate agent by reason of his being or having been such a corporate agent, other than a proceeding by or in the right of the corporation, if (a) such corporate agent acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation; and (b) with respect to any criminal proceeding, such corporate agent had no reasonable cause to believe his conduct was unlawful. The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that such corporate agent did not meet the applicable standards of conduct set forth in paragraphs 14A:3-5(2)(a) and 14A:3-5(2)(b). "(3) Any corporation organized for any purpose under any general or special law of this State shall have the power to indemnify a corporate agent against his expenses in connection with any proceeding by or in the right of the corporation to procure a judgment in its favor which involves the corporate agent by reason of his being or having been such corporate agent, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation. However, in such proceeding no indemnification shall be provided in respect of any claim, issue or matter as to which such corporate agent shall have been adjudged to be liable to the corporation, unless and only to the extent that the Superior Court or the court in which such proceeding was brought shall determine upon application that despite the adjudication of liability, but in view of all circumstances of the case, such corporate agent is fairly and reasonably entitled to indemnity for such expenses as the Superior Court or such other court shall deem proper. "(4) Any corporation organized for any purpose under any general or special law of this State shall indemnify a corporate agent against expenses to the extent that such corporate agent has been successful on the merits or otherwise in any proceeding referred to in subsections 14A:3-5(2) and 14A:3-5(3) or in defense of any claim, issue or matter therein. "(5) Any indemnification under subsection 14A:3-5(2) and, unless ordered by a court, under subsection 14A:3-5(3) may be made by the corporation only as authorized in a specific case upon a determination that indemnification is proper in the circumstances because the corporate agent met the applicable standard of conduct set forth in subsection 14A:3-5(2) or subsection 14A:3-5(3). Unless otherwise provided in the certificate of incorporation or bylaws, such determination shall be made (a) by the board of directors or a committee thereof, acting by a majority vote of a quorum consisting of directors who were not parties to or otherwise involved in the proceeding; or II-2 33 (b) if such a quorum is not obtainable, or, even if obtainable and such quorum of the board of directors or committee by a majority vote of the disinterested directors so directs, by independent legal counsel, in a written opinion, such counsel to be designated by the board of directors; or (c) by the shareholders if the certificate of incorporation or bylaws or a resolution of the board of directors or of the shareholders so directs. "(6) Expenses incurred by a corporate agent in connection with a proceeding may be paid by the corporation in advance of the final disposition of the proceeding as authorized by the board of directors upon receipt of an undertaking by or on behalf of the corporate agent to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified as provided in this section. "(7)(a) If a corporation upon application of a corporate agent has failed or refused to provide indemnification as required under subsection 14A:3-5(4) or permitted under subsections 14A:3-5(2), 14A:3-5(3) and 14A:3-5(6), a corporate agent may apply to a court for an award of indemnification by the corporation, and such court (i) may award indemnification to the extent authorized under subsections 14A:3-5(2) and 14A:3-5(3) and shall award indemnification to the extent required under subsection 14A:3-5(4), notwithstanding any contrary determination which may have been made under subsection 14A:3-5(5); and (ii) may allow reasonable expenses to the extent authorized by, and subject to the provisions of, subsection 14A:3-5(6), if the court shall find that the corporate agent has by his pleadings or during the course of the proceeding raised genuine issues of fact or law. (b) Application for such indemnification may be made (i) in the civil action in which the expenses were or are to be incurred or other amounts were or are to be paid; or (ii) to the Superior Court in a separate proceeding. If the application is for indemnification arising out of a civil action, it shall set forth reasonable cause for the failure to make application for such relief in the action or proceeding in which the expenses were or are to be incurred or other amounts were or are to be paid. The application shall set forth the disposition of any previous application for indemnification and shall be made in such manner and form as may be required by the applicable rules of court or, in the absence thereof, by direction of the court to which it is made. Such application shall be upon notice to the corporation. The court may also direct that notice shall be given at the expense of the corporation to the shareholders and such other person as it may designate in such manner as it may require. "(8) The indemnification and advancement of expenses provided by or granted pursuant to the other subsections of this section shall not exclude any other rights, including the right to be indemnified against liabilities and expenses incurred in proceedings by or in the right of the corporation, to which a corporate agent may be entitled under a certificate of incorporation, bylaw, agreement, vote of shareholders, or otherwise; provided that no indemnification shall be made to or on behalf of a corporate agent if a judgment or other final adjudication adverse to the corporate agent establishes that his acts or omissions (a) were in breach of his duty of loyalty to the corporation or its shareholders, as defined in subsection (3) of N.J.S. 14A:2-7, (b) were not in good faith or involved a knowing violation of law or (c) resulted in receipt by the corporate agent of an improper personal benefit. "(9) Any corporation organized for any purpose under any general or special law of this State shall have the power to purchase and maintain insurance on behalf of any corporate agent against any expenses incurred in any proceeding and any liabilities asserted against him by reason of his being or having been a corporate agent, whether or not the corporation would have the power to indemnify him against such expenses and liabilities under the provisions of this section. The corporation may purchase such insurance II-3 34 from, or such insurance may be reinsured in whole or in part by, an insurer owned by or otherwise affiliated with the corporation, whether or not such insurer does business with other insureds. "(10) The powers granted by this section may be exercised by the corporation, notwithstanding the absence of any provision in its certificate of incorporation or bylaws authorizing the exercise of such powers. "(11) Except as required by subsection 14A:3-5(4), no indemnification shall be made or expenses advanced by a corporation under this section, and none shall be ordered by a court, if such action would be inconsistent with a provision of the certificate of incorporation, a bylaw, a resolution of the board of directors or of the shareholders, an agreement or other proper corporate action, in effect at the time of the accrual of the alleged cause of action asserted in the proceeding, which prohibits, limits or otherwise conditions the exercise of indemnification powers by the corporation or the rights of indemnification to which a corporate agent may be entitled. "(12) This section does not limit a corporation's power to pay or reimburse expenses incurred by a corporate agent in connection with the corporate agent's appearance as a witness in a proceeding at a time when the corporate agent has not been made a party to the proceeding." The Company has various insurance policies, which became effective April 15, 1994, insuring directors and officers against certain liabilities they may incur, including liabilities under the Securities Act of 1933, as amended. The policies provide coverage for claims not reimbursed by the Company up to an aggregate limit of $75 million without deductible. For claims which are reimbursed by the Company, the policies provide coverage up to $75 million with a deductible of $1 million. These policies remain in effect. ITEM 16. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION OF DOCUMENTS - ------ ------------------------------------------------------------------------------- 1.1 Form of Underwriting Agreement between the Company and the underwriters named therein for Common Stock, Preferred Stock, Convertible Preferred Stock, Debt Securities, Convertible Debt Securities, Depositary Shares and Warrants. 1.2 Form of Underwriting Agreement among the Company, MIM and the underwriters named therein for Common Stock.* 3.1 Certificate of Incorporation (a) Certificate of Incorporation -- restated, filed May 4, 1970 (Filed as an Exhibit to the Company's 1980 Annual Report on Form 10-K and incorporated herein by reference) (b) Certificate of Amendment to the Certificate of Incorporation effective April 23, 1975 (Filed as an Exhibit to the Company's 1980 Annual Report on Form 10-K and incorporated herein by reference) (c) Certificate of Amendment of Certificate of Incorporation executed April 14, 1981 (Filed as an Exhibit to the Post-Effective Amendment No. 8 to Registration Statement No. 2-47616, filed April 30, 1981 and incorporated herein by reference) (d) Certificate of Amendment of Restated Certificate of Incorporation filed on May 6, 1985 (Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1985 and incorporated herein by reference) (e) Certificate of Amendment of Certificate of Incorporation filed July 21, 1986 (Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1986 and incorporated herein by reference)
II-4 35
EXHIBIT NUMBER DESCRIPTION OF DOCUMENTS - ------ ------------------------------------------------------------------------------- (f) Certificate of Amendment of Restated Certificate of Incorporation, as amended, filed April 22, 1987 (Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and incorporated herein by reference) (g) Statement of Cancellation filed July 31, 1987 whereby 155,000 shares of Series A Cumulative Preferred Stock and 862,500 shares of $9.00 Convertible Exchangeable Preferred Stock were cancelled (Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and incorporated herein by reference) (h) Statement of Cancellation filed November 20, 1987 whereby 1,026,900 shares of Series A Cumulative Preferred Stock were cancelled (Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and incorporated herein by reference) (i) Statement of Cancellation filed December 18, 1987 whereby 1,250,000 shares of Series B Cumulative Convertible Preferred Stock were cancelled (Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and incorporated herein by reference) (j) Statement of Cancellation filed March 3, 1988 whereby 27,000 shares of Series A Cumulative Preferred Stock were cancelled (Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and incorporated herein by reference) (k) Certificate of Amendment of Restated Certificate of Incorporation, as amended, filed August 7, 1989 (Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1989 and incorporated herein by reference) 3.2 By-Laws as last amended on June 26, 1991 (Filed as an Exhibit to the Company's 1991 Annual Report on Form 10-K and incorporated herein by reference) 4.1 Form of Indenture between the Company and Chemical Bank, as Trustee, for Debt Securities and Convertible Debt Securities 4.2 Form of Deposit Agreement between the Company and the Depositary, for Depositary Shares and Depositary Receipts 4.3 Form of Common Stock Warrant Agreement 4.4 Form of Preferred Stock Warrant Agreement 4.5 Form of Debt Warrant Agreement 4.6 Form of Currency Warrant Agreement 5.1 Opinion of White & Case 12.1 Statement re Computation of Consolidated Ratio of Earnings to Fixed Charges and Combined Fixed Charges and Preferred Share Dividend Requirements 15.1 Letter re Unaudited Interim Financial Information 23.1 Consent of Coopers & Lybrand 23.2 Consent of White & Case (contained in its opinion filed as Exhibit 5.1) 25.1 Statement of Eligibility of Trustee
- --------------- * To be filed by amendment. II-5 36 ITEM 17. UNDERTAKINGS. 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; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (5) That, for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-6 37 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on the 12th day of October, 1994. ASARCO INCORPORATED By: /s/ RICHARD DE J. OSBORNE -------------------------- Richard de J. Osborne Chairman of the Board, Chief Executive Officer and President POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints and hereby authorizes Kevin R. Morano and Augustus B. Kinsolving, and each of them, as attorney-in-fact, to sign in such person's behalf, individually and in each capacity stated below, and to file any amendments, including post-effective amendments to this Registration Statement. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES STATED BELOW ON THE 12TH DAY OF OCTOBER, 1994.
SIGNATURE TITLE DATE - ------------------------------------- ------------------------------------- --------------- /s/ RICHARD DE J. OSBORNE Chairman of the Board, Chief October 12, 1994 - ------------------------------------- Executive Officer and President (Richard de J. Osborne) /s/ KEVIN R. MORANO Vice President, and Chief Financial October 12, 1994 - ------------------------------------- Officer (Principal Financial Officer) (Kevin R. Morano) /s/ RONALD J. O'KEEFE Controller (Principal Accounting October 12, 1994 - ------------------------------------- Officer) (Ronald J. O'Keefe) /s/ WILLARD C. BUTCHER Director October 12, 1994 - ------------------------------------- (Willard C. Butcher) /s/ JAMES C. COTTING Director October 12, 1994 - ------------------------------------- (James C. Cotting) Director - ------------------------------------- (Norman C. Fussell) Director - ------------------------------------- (David C. Garfield)
II-7 38
SIGNATURE TITLE DATE - ------------------------------------- ------------------------------------- --------------- /s/ DR. E. GORDON GEE Director October 12, 1994 - ------------------------------------- (Dr. E. Gordon Gee) /s/ HARRY HOLIDAY, JR. Director October 12, 1994 - ------------------------------------- (Harry Holiday, Jr.) /s/ JAMES W. KINNEAR, III Director October 12, 1994 - ------------------------------------- (James W. Kinnear, III) /s/ FRANCIS R. MCALLISTER Executive Vice President and Director October 12, 1994 - ------------------------------------- (Francis R. McAllister) /s/ MARTHA T. MUSE Director October 12, 1994 - ------------------------------------- (Martha T. Muse) /s/ MICHAEL T. NELLIGAN Director October 12, 1994 - ------------------------------------- (Michael T. Nelligan) /s/ JOHN D. ONG Director October 12, 1994 - ------------------------------------- (John D. Ong) /s/ PETER R. ROWLAND Director October 12, 1994 - ------------------------------------- (Peter R. Rowland) /s/ JAMES WOOD Director October 12, 1994 - ------------------------------------- (James Wood)
II-8 39 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION OF DOCUMENTS PAGE - ------ ------------------------------------------------------------------------- ---- 1.1 Form of Underwriting Agreement between the Company and the underwriters named therein for Common Stock, Preferred Stock, Convertible Preferred Stock, Debt Securities, Convertible Debt Securities, Depositary Shares and Warrants. 1.2 Form of Underwriting Agreement among the Company, MIM and the underwriters named therein for Common Stock.* 3.1 Certificate of Incorporation (a) Certificate of Incorporation -- restated, filed May 4, 1970 (Filed as an Exhibit to the Company's 1980 Annual Report on Form 10-K and incorporated herein by reference) (b) Certificate of Amendment to the Certificate of Incorporation effective April 23, 1975 (Filed as an Exhibit to the Company's 1980 Annual Report on Form 10-K and incorporated herein by reference) (c) Certificate of Amendment of Certificate of Incorporation executed April 14, 1981 (Filed as an Exhibit to the Post-Effective Amendment No. 8 to Registration Statement No. 2-47616, filed April 30, 1981 and incorporated herein by reference) (d) Certificate of Amendment of Restated Certificate of Incorporation filed on May 6, 1985 (Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1985 and incorporated herein by reference) (e) Certificate of Amendment of Certificate of Incorporation filed July 21, 1986 (Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1986 and incorporated herein by reference) (f) Certificate of Amendment of Restated Certificate of Incorporation, as amended, filed April 22, 1987 (Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and incorporated herein by reference) (g) Statement of Cancellation filed July 31, 1987 whereby 155,000 shares of Series A Cumulative Preferred Stock and 862,500 shares of $9.00 Convertible Exchangeable Preferred Stock were cancelled (Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and incorporated herein by reference) (h) Statement of Cancellation filed November 20, 1987 whereby 1,026,900 shares of Series A Cumulative Preferred Stock were cancelled (Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and incorporated herein by reference) (i) Statement of Cancellation filed December 18, 1987 whereby 1,250,000 shares of Series B Cumulative Convertible Preferred Stock were cancelled (Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and incorporated herein by reference) (j) Statement of Cancellation filed March 3, 1988 whereby 27,000 shares of Series A Cumulative Preferred Stock were cancelled (Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and incorporated herein by reference)
II-9 40
EXHIBIT NUMBER DESCRIPTION OF DOCUMENTS PAGE - ------ ------------------------------------------------------------------------- ---- (k) Certificate of Amendment of Restated Certificate of Incorporation, as amended, filed August 7, 1989 (Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1989 and incorporated herein by reference) 3.2 By-Laws as last amended on June 26, 1991 (Filed as an Exhibit to the Company's 1991 Annual Report on Form 10-K and incorporated herein by reference) 4.1 Form of Indenture between the Company and Chemical Bank, as Trustee, for Debt Securities and Convertible Debt Securities 4.2 Form of Deposit Agreement between the Company and the Depositary, for Depositary Shares and Depositary Receipts 4.3 Form of Common Stock Warrant Agreement 4.4 Form of Preferred Stock Warrant Agreement 4.5 Form of Debt Warrant Agreement 4.6 Form of Currency Warrant Agreement 5.1 Opinion of White & Case 12.1 Statement re Computation of Consolidated Ratio of Earnings to Fixed Charges and Combined Fixed Charges and Preferred Share Dividend Requirements 15.1 Letter re Unaudited Interim Financial Information 23.1 Consent of Coopers & Lybrand 23.2 Consent of White & Case (contained in its opinion filed as Exhibit 5.1) 25.1 Statement of Eligibility of Trustee
- --------------- * To be filed by amendment II-10 EX-1.1 2 FORM OF UNDERWRITING AGREEMENT 1 EXHIBIT 1.1 ASARCO INCORPORATED Debt Securities Convertible Debt Securities Preferred Stock Convertible Preferred Stock Common Stock Debt Warrants Common Stock Warrants Preferred Stock Warrants Currency Warrants FORM OF UNDERWRITING AGREEMENT 1. Introductory. ASARCO Incorporated, a New Jersey corporation ("Company"), proposes to issue and sell from time to time certain of its unsecured debt securities, convertible debt securities, preferred stock, depositary shares, convertible preferred stock, warrants and common stock ("Common Stock") registered under the registration statement referred to in Section 2(a) ("Registered Securities"). The Registered Securities constituting debt securities will be issued under an indenture, dated as of October 1, 1994 ("Indenture"), between the Company and Chemical Bank, as Trustee, in one or more series, which series may vary as to interest rates, maturities, redemption provisions, selling prices and other terms. The Registered Securities constituting preferred stock may be issued in one or more series, which series may vary as to dividend rates, redemption provisions, selling prices and other terms. The Registered Securities constituting depositary shares will be issued under a depositary agreement dated as of [ ], 199[ ] ("Deposit Agreement"), between the Company and [ ], as Depositary, in one or more series, which series may vary as to dividend rates, redemption provisions, selling prices and other terms. The Registered Securities constituting warrants will be issued under a debt warrant agreement, common stock warrant agreement, preferred stock warrant agreement or currency warrant agreement, respectively, each dated as of [ ], 199[ ] (in each case, as applicable, the "Warrant Agreement"), between the Company and [ ] as Warrant Agent, in one or more series, which series may vary as to interest rates, and maturities (in the case of debt warrants), dividend rates (in the case of equity warrants), redemption provisions, selling prices and other terms. Particular series or offerings of Registered Securities will be sold pursuant to a Terms Agreement referred to in Section 3, for resale in accordance with terms of offering determined at the time of sale. The Registered Securities involved in any such offering are hereinafter referred to as the "Offered Securities". The firm or firms which agree to purchase the Offered Securities are hereinafter referred to as the "Underwriters" of such Securities, and the representative or representatives of the Underwriters, if any, specified in a Terms Agreement referred to in Section 3 are hereinafter referred to as the "Representatives"; provided, however, that, if the Terms Agreement does not specify any representative of the Underwriters, the term "Representatives", as used in this Agreement (other than in Sections 2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the Underwriters. 2 2 2. Representations and Warranties of the Company. The Company, as of the date of each Terms Agreement referred to in Section 3, represents and warrants to, and agrees with, each Underwriter that: (a) A registration statement (No. 33- ), including a prospectus, relating to the Registered Securities has been filed with the Securities and Exchange Commission ("Commission") and has become effective. Such registration statement, as amended at the time of any Terms Agreement referred to in Section 3, is hereinafter referred to as the "Registration Statement", and the prospectus included in such Registration Statement, as supplemented as contemplated by Section 3 to reflect the terms of the offering of the Offered Securities, as first filed with the Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act of 1933 ("Act"), including all material incorporated by reference therein as of the date of such filing, is hereinafter referred to as the "Prospectus". (b) On the effective date of the registration statement relating to the Registered Securities, such registration statement conformed in all material respects to the requirements of the Act, the Trust Indenture Act of 1939 ("Trust Indenture Act") and the rules and regulations of the Commission ("Rules and Regulations") and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and on the date of each Terms Agreement referred to in Section 3 the Registration Statement and the Prospectus will conform in all respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, except that the foregoing does not apply to statements in or omissions from any of such documents based upon written information furnished to the Company by any Underwriter through the Representatives, if any, specifically for use therein. 3. Purchase and Offering of Offered Securities. The obligation of the Underwriters to purchase the Offered Securities will be evidenced by an agreement or exchange of telegraphic or other written communications ("Terms Agreement") at the time the Company determines to sell the Offered Securities. The Terms Agreement will incorporate by reference the provisions of this Agreement, except as otherwise provided therein, and will specify the firm or firms which will be Underwriters, the names of any Representatives, the principal amount or number of shares to be purchased by each Underwriter, the purchase price to be paid by the Underwriters and (if the Offered Securities are debt securities, depositary shares, warrants or preferred stock) the terms of the Offered Securities not already specified (in the Indenture, in the case of Offered Securities that are debt securities; in the Warrant Agreement, in the case of Offered Securities that are warrants; and in the Deposit Agreement, in the case of Offered Securities that are depositary shares), including, but not limited to, interest rate (if debt securities or debt warrants), dividend rate (if preferred stock, preferred stock warrants or depositary shares), maturity (if debt securities or warrants), any redemption provisions and any sinking fund requirements and whether any of the Offered Securities may be sold to institutional investors pursuant to Delayed Delivery Contracts (as defined below). The Terms Agreement will also specify the time and date of delivery and payment (such time and date, or such other time not later than seven full business days thereafter as the 3 3 Underwriter first named in the Terms Agreement (the "Lead Underwriter") and the Company agree as the time for payment and delivery, being herein and in the Terms Agreement referred to as the "Closing Date"), the place of delivery and payment and any details of the terms of the offering that should be reflected in the prospectus supplement relating to the offering of the Offered Securities. The obligations of the Underwriters to purchase the Offered Securities will be several and not joint. It is understood that the Underwriters propose to offer the Securities for sale as set forth in the Prospectus. If the Terms Agreement provides for sales of Offered Securities pursuant to delayed delivery contracts, the Company authorizes the Underwriters to solicit offers to purchase Offered Securities pursuant to delayed delivery contracts substantially in the form of Annex I attached hereto ("Delayed Delivery Contracts") with such changes therein as the Company may authorize or approve. Delayed Delivery Contracts are to be with institutional investors, including commercial and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions. On the Closing Date the Company will pay, as compensation, to the Representatives for the accounts of the Underwriters, the fee set forth in such Terms Agreement in respect of the principal amount or number of shares of Offered Securities to be sold pursuant to Delayed Delivery Contracts ("Contract Securities"). The Underwriters will not have any responsibility in respect of the validity or the performance of Delayed Delivery Contracts. If the Company executes and delivers Delayed Delivery Contracts, the Contract Securities will be deducted from the Offered Securities to be purchased by the several Underwriters and the aggregate principal amount or number of shares of Offered Securities to be purchased by each Underwriter will be reduced pro rata in proportion to the principal amount or number of shares of Offered Securities set forth opposite each Underwriter's name in such Terms Agreement, except to the extent that the Lead Underwriter determines that such reduction shall be otherwise than pro rata and so advise the Company. The Company will advise the Lead Underwriter not later than the business day prior to the Closing Date of the principal amount or number of shares of Contract Securities. If the Offered Securities are preferred stock or Common Stock, the certificates for the Offered Securities delivered to the Underwriters on the Closing Date will be in definitive form and, if the Offered Securities are debt securities or depositary shares, the Offered Securities delivered to the Underwriters on the Closing Date will be in definitive fully registered form, in each case in such denominations and registered in such names as the Lead Underwriter requests. If the Offered Securities are warrants, the Offered Securities delivered to the Underwriters on the Closing Date will be in such form as specified in the applicable Warrant Agreement. If the Offered Securities are debt securities and the Terms Agreement specifies "Book- Entry Only" settlement or otherwise states that the provisions of this paragraph shall apply, the Company will deliver against payment of the purchase price the Offered Securities in the form of one or more permanent global Securities in definitive form (the "Global Securities") deposited with the Trustee as custodian for The Depository Trust Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC. Interests in any permanent global Securities will be held only in book-entry form through DTC, except in the limited circumstances described in the Prospectus. Payment for the Offered Securities shall be made by the Underwriters (if the Terms Agreement specifies that the Offered Securities will not trade in DTC's Same Day Funds Settlement System) by certified or official bank 4 4 check or checks in New York Clearing House (next-day) funds or (if the Terms Agreement specifies that the Offered Securities will trade in DTC's Same Day Funds Settlement System) in Federal (same- day) funds by official check or checks or wire transfer to an account in New York previously designated to the Lead Underwriter by the Company at a bank acceptable to the Lead Underwriter, in each case drawn to the order of ASARCO Incorporated at the place of payment specified in the Terms Agreement on the Closing Date, against delivery to the Trustee, as custodian for DTC, of the Global Securities representing all the Offered Securities. 4. Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to counsel for the Underwriters one signed copy of the registration statement relating to the Registered Securities, including all exhibits, in the form in which it became effective and of all amendments thereto and that, in connection with each offering of Offered Securities: (a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Lead Underwriter, subparagraph (5)) not later than the second business day following the execution and delivery of the Terms Agreement. (b) The Company will advise the Lead Underwriter promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Lead Underwriter a reasonable opportunity to comment on any such proposed amendment or supplement, and the Company will also advise the Lead Underwriter promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its reasonable best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time during such period to amend the Prospectus to comply with the Act, the Company promptly will notify the Lead Underwriter of such event and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Lead Underwriter's consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5. (d) As soon as practicable, but not later than 16 months, after the date of each Terms Agreement, the Company will make generally available to its security holders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the registration statement relating to the Registered Securities, (ii) the effective date of the most recent posteffective amendment to the 5 5 Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms Agreement, which will satisfy the provisions of Section 11(a) of the Act. (e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendment and supplements to such documents, in each case as soon as available and in such quantities as the Lead Underwriter reasonably requests. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (f) The Company will arrange for the qualification of the Offered Securities for sale and (if the Offered Securities are debt securities or preferred stock) the determination of their eligibility for investment under the laws of such jurisdictions as the Lead Underwriter designates and will continue such qualification in effect so long as required for the distribution; provided, however, that in no event shall the Company be required to qualify as a foreign corporation or to file a general consent for service of process in any such jurisdiction. (g) During the period of 2 years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934 or mailed to stockholders, and (ii) from time to time, such other publicly available information concerning the Company as the Lead Underwriter may reasonably request. (h) The Company will pay all expenses incident to the performance of its obligations under the Terms Agreement (including the provisions of this Agreement) and will reimburse the Underwriters (if and to the extent incurred by them) (i) for any filing fees or other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale and (if the Offered Securities are debt securities or preferred stock) any determination of their eligibility for investment under the laws of such jurisdictions as the Lead Underwriter may designate and the printing of memoranda relating thereto (provided that the expenses and fees provided in this clause (i) shall not exceed $15,000 in the aggregate), (ii) for any fees charged by investment rating agencies for the rating of the Offered Securities (if they are debt securities or preferred stock), (iii) for any applicable filing fee of the National Association of Securities Dealers, Inc. relating to the Registered Securities, (iv) for any travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of Registered Securities and (v) for expenses incurred in distributing the Prospectus, any preliminary prospectuses, any preliminary prospectus supplements or any other amendments or supplements to the Prospectus to the Underwriters. 6 6 If the Offered Securities are debt securities or preferred stock, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating United States dollar- denominated debt securities issued or guaranteed by the Company and having a maturity of more than [one year] from the date of issue (if the Offered Securities are debt securities) or any series of preferred stock issued or guaranteed by the Company (if the Offered Securities are preferred stock), or publicly disclose the intention to make any such offer, sale, pledge, disposal or filing, without the prior written consent of the Lead Underwriter for a period beginning at the time of execution of the Terms Agreement and ending the number of days after the Closing Date specified under "Blackout" in the Terms Agreement. If the Offered Securities are Common Stock or are convertible into Common Stock, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its Common Stock or securities convertible into or exchangeable or exercisable for any shares of its Common Stock, or publicly disclose the intention to make any such offer, sale, pledge, disposal or filing, without the prior written consent of the Lead Underwriter for a period beginning at the time of execution of the Terms Agreement and ending the number of days after the Closing Date specified under "Blackout" in the Terms Agreement, except issuances of Common Stock pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding on the date of the Terms Agreement, grants of employee stock options pursuant to the terms of a plan in effect on the date of the Terms Agreement, issuances of Common Stock pursuant to the exercise of such options including the exercise of any other employee stock options outstanding on the date of the Terms Agreement or issuances of Common Stock pursuant to the Company's dividend reinvestment plan, saving plans or other employee or director benefit or compensation plan of the Company. 5. Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of Company officers made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent: (a) On or prior to the date of the Terms Agreement, the Representatives shall have received a letter, dated the date of delivery thereof, of Coopers & Lybrand confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder and stating to the effect that: (i) in their opinion the financial statements and any schedules and any summary of earnings examined by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations; 7 7 (ii) they have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 71, Interim Financial Information, on any unaudited financial statements included in the Registration Statement; (iii) on the basis of the review referred to in clause (ii) above, a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that: (A) the unaudited financial statements, if any, included in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations or any material modifications should be made to such unaudited financial statements for them to be in conformity with generally accepted accounting principles; (B) if any unaudited "capsule" information is contained in the Prospectus, the unaudited consolidated net sales, net operating income, net income and net income per share amounts or other amounts constituting such "capsule" information and described in such letter do not agree with the corresponding amounts set forth in the unaudited consolidated financial statements or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited statements of income; (C) at the date of the latest available balance sheet read by such accoun- tants, or at a subsequent specified date not more than five days prior to the date of the Terms Agreement, there was any change in the capital stock or any increase in short-term indebtedness or long-term debt of the Company and its consolidated subsidiaries or, at the date of the latest available balance sheet read by such accountants, there was any decrease in consolidated net current assets or net assets, as compared with amounts shown on the latest balance sheet included in the Prospectus; or (D) for the period from the closing date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year and with the period of corresponding length ended the date of the latest income statement included in the Prospectus, in consolidated net sales, net operating income in the total or (if 8 8 the Offered Securities are Common Stock or are convertible into Common Stock) per share amounts of consolidated income before extraordinary items or net income or in the ratio of earnings to fixed charges or (if the Offered Securities are preferred stock) in the ratio of earnings to fixed charges and preferred stock dividends combined; except in all cases set forth in clauses (C) and (D) above for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; and (iv) they have, at the reasonable request of the Lead Underwriter, compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Prospectus (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. All financial statements and schedules included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this subsection. (b) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or any Underwriter, shall be contemplated by the Commission. (c) Subsequent to the execution of the Terms Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in, or affecting particularly, the condition (financial or other), business, properties or results of operations of the Company or its subsidiaries which, in the reasonable judgment of a majority in interest of the Underwriters including any Representatives, materially impairs the investment quality of, or makes it impracticable or inadvisable to proceed with the completion of the public offering or the sale of and payment for, the Offered Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities or preferred stock of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange (other than a limitation on the hours of trading), or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (iv) any banking 9 9 moratorium declared by U.S. Federal or, New York or authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of a majority in interest of the Underwriters including any Representatives, the effect of any such outbreak, escalation, declaration, calamity or emergency is material and adverse to the market for the Offered Securities and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities. (d) The Representatives shall have received an opinion, dated the Closing Date, of White & Case counsel for the Company, to the effect that: (i) the Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of New Jersey, with corporate power and authority to own its properties and conduct its business as described in the Prospectus; (ii) if the Offered Securities are debt securities: the Indenture has been duly authorized, executed and delivered by the Company and has been duly qualified under the Trust Indenture Act; the Offered Securities have been duly authorized; the Offered Securities other than any Contract Securities have been duly executed, authenticated, issued and delivered; the Indenture and the Offered Securities other than any Contract Securities constitute, and any Contract Securities, when duly executed, authenticated, issued and delivered against payment therefor in the manner provided in the Indenture and sold pursuant to Delayed Delivery Contracts, will constitute, valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; and the Offered Securities other than any Contract Securities conform in all material respects, and any Contract Securities, when so issued and delivered and sold will conform, to the description thereof contained in the Prospectus, as amended or supplemented; (iii) if the Offered Securities are preferred stock: the Offered Securities have been duly authorized; the Offered Securities other than any Contract Securities have been validly issued and, assuming payment therefor by the Underwriters as provided herein, are fully paid and nonassessable; any Contract Securities, when issued, delivered and sold pursuant to Delayed Delivery Contracts, will be validly issued, fully paid and nonassessable; and the Offered Securities other than any Contract Securities conform, and any Contract Securities, when so issued, delivered and sold, will conform, in all material respects to the description thereof contained in the Prospectus; and the stockholders of the Company have no preemptive rights with respect to the Offered Securities; 10 10 (iv) if the Offered Securities are Common Stock: the Offered Securities have been duly authorized and validly issued, are fully paid, assuming payment therefor by the Underwriters as provided herein, and nonassessable and conform in all material respects to the description thereof contained in the Prospectus; and the stockholders of the Company have no preemptive rights with respect to the Offered Securities; (v) if the Offered Securities are convertible: the Offered Securities other than any Contract Securities are, and any Contract Securities, when (if the Offered Securities are debt securities) executed, authenticated, issued and delivered in the manner provided in the Indenture and sold pursuant to Delayed Delivery Contracts or (if the Offered Securities are preferred stock) when issued, delivered and sold pursuant to Delayed Delivery Contracts, will be convertible into Common Stock of the Company in accordance with (if they are debt securities) the Indenture or (if they are preferred stock) their terms; the shares of Common Stock initially issuable upon conversion of the Offered Securities have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued, fully paid and nonassessable; the outstanding shares of Common Stock conform in all material respects to the description thereof contained in the Prospectus; and the stockholders of the Company have no preemptive rights with respect to the Common Stock; (vi) if the Offered Securities are Common Stock or are convertible into Common Stock: there are no contracts, agreements or understandings known to such counsel between the Company and any person (other than M.I.M. Holdings Limited) granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Act; (vii) the Company is not an "investment company" as defined in the Investment Company Act of 1940; (viii) no consent, approval, authorization or order of, or filing with, any Federal or, to the best of such counsel's knowledge after due inquiry, other governmental agency or body or any court having jurisdiction over the Company is required for the consummation of the transactions contemplated by the Terms Agreement (including the provisions of this Agreement) in connection with the issuance or sale of the Offered Securities by the Company, except such as have been obtained and made under the Act and, if the Offered Securities are debt securities, the Trust Indenture Act and such as may be required under state securities or Blue Sky laws; (ix) the execution, delivery and performance by the Company of its obligations under the Indenture (if the Offered Securities are debt securities), the Terms Agreement (including the provisions of this Agreement) 11 11 and the issuance and sale of the Offered Securities and, if the Offered Securities are debt securities or preferred stock, any Delayed Delivery Contracts and the issuance and sale of the Offered Securities and, if the Offered Securities are debt securities or preferred stock, compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under any New York or Federal statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Company or any Significant Subsidiary of the Company or any of their properties, or any agreement or instrument for borrowed money known to such counsel to which the Company is a party or by which the Company is bound or to which any material properties of the Company is subject, or the charter or by-laws of the Company, and the Company has full corporate power and authority to authorize, issue and sell the Offered Securities as contemplated by the Terms Agreement (including the provisions of this Agreement); (x) the Registration Statement has become effective under the Act, the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) specified in such opinion on the date specified therein, and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, as of its effective date, and the Prospectus, as of the date of the Terms Agreement, and any amendment or supplement thereto, as of its date, complied as to form in all material respects with the requirements of the Act, the Trust Indenture Act and the Rules and Regulations; such counsel have no reason to believe that such Registration Statement, as of its effective date, the Prospectus, as of the date of the Terms Agreement or as of the Closing Date, or any amendment thereto, as of its date or as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of the date of the Terms Agreement or as of such Closing Date, or any amendment or supplement thereto, as of its date or as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus which are not described as required or of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required; it being understood that such counsel need express no opinion as to the financial statements and related Schedules therein or other financial or statistical data contained or incorporated by reference in the Registration Statement or the Prospectus; and 12 12 (xi) the Terms Agreement (including the provisions of this Agreement) and, if the Offered Securities are debt securities or preferred stock, any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company. In rendering such opinion,White & Case may rely as to all matters governed by New Jersey law on the opinion of Pitney, Hardin, Kipp & Szuch; provided, however, that they will furnish a copy thereof to the Representatives and state in their opinion that they and the Representatives are justified in relying on such opinion of New Jersey counsel for such matters. (e) The Representatives shall have received an opinion, dated the Closing Date, from Augustus B. Kinsolving, Vice President, General Counsel and Secretary of the Company, to the effect that: (i) the Company and each of its Significant Subsidiaries (as defined in the Indenture) have been duly incorporated and are validly existing and in good standing under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and are in good standing as foreign corporations in all jurisdictions in which their respective ownership of property or the conduct of their respective businesses requires such qualification (except where the failure to so qualify would not have a material adverse effect upon the Company and its subsidiaries taken as a whole), and have all power and authority necessary to own their respective properties and conduct the businesses in which they are engaged as described in the Prospectus; (ii) if the Offered Securities are debt securities: the Indenture has been duly authorized, executed and delivered by the Company and has been duly qualified under the Trust Indenture Act; the Offered Securities have been duly authorized; the Offered Securities other than any Contract Securities have been duly executed, authenticated, issued and delivered; the Indenture and the Offered Securities other than any Contract Securities constitute, and any Contract Securities, when duly executed, authenticated, issued and delivered against payment therefor in the manner provided in the Indenture and sold pursuant to Delayed Delivery Contracts, will constitute, valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; and the Offered Securities other than any Contract Securities conform in all material respects, and any Contract Securities, when so issued and delivered and sold will conform, to the description thereof contained in the Prospectus, as amended or supplemented; (iii) if the Offered Securities are preferred stock: the Offered Securities have been duly authorized; the Offered Securities other than any Contract Securities have been validly issued and, assuming payment therefor by the Underwriters as provided herein, are fully paid and nonassessable; any Contract Securities, when issued, delivered and sold pursuant to Delayed 13 13 Delivery Contracts, will be validly issued, fully paid and nonassessable; and the Offered Securities other than any Contract Securities conform, and any Contract Securities, when so issued, delivered and sold, will conform, in all material respects to the description thereof contained in the Prospectus; and the stockholders of the Company have no preemptive rights with respect to the Offered Securities; (iv) if the Offered Securities are Common Stock: the Offered Securities have been duly authorized and validly issued, are fully paid, assuming payment therefor by the Underwriters as provided herein, and nonassessable and conform in all material respects to the description thereof contained in the Prospectus; and the stockholders of the Company have no preemptive rights with respect to the Offered Securities; (v) if the Offered Securities are convertible: the Offered Securities other than any Contract Securities are, and any Contract Securities, when (if the Offered Securities are debt securities) executed, authenticated, issued and delivered in the manner provided in the Indenture and sold pursuant to Delayed Delivery Contracts or (if the Offered Securities are preferred stock) when issued, delivered and sold pursuant to Delayed Delivery Contracts, will be convertible into Common Stock of the Company in accordance with (if they are debt securities) the Indenture or (if they are preferred stock) their terms; the shares of Common Stock initially issuable upon conversion of the Offered Securities have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued, fully paid and nonassessable; the outstanding shares of Common Stock conform in all material respects to the description thereof contained in the Prospectus; and the stockholders of the Company have no preemptive rights with respect to the Common Stock; (vi) if the Offered Securities are Common Stock or are convertible into Common Stock: there are no contracts, agreements or understandings known to such counsel between the Company and any person (other than M.I.M. Holdings Limited) granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Act; (vii) the Company is not an "investment company" as defined in the Investment Company Act of 1940; (viii) no consent, approval, authorization or order of, or filing with, any Federal or, to the best of such counsel's knowledge after due inquiry, other governmental agency or body or any court having jurisdiction over the Company is required for the consummation of the transactions contemplated by the Terms Agreement (including the provisions of this Agreement) in connection with the issuance or sale of the Offered Securities by the 14 14 Company, except such as have been obtained and made under the Act and, if the Offered Securities are debt securities, the Trust Indenture Act and such as may be required under state securities or Blue Sky laws; (ix) the execution, delivery and performance by the Company of its obligations under the Indenture (if the Offered Securities are debt securities), the Terms Agreement (including the provisions of this Agreement) and the issuance and sale of the Offered Securities and, if the Offered Securities are debt securities or preferred stock, any Delayed Delivery Contracts and the issuance and sale of the Offered Securities and, if the Offered Securities are debt securities or preferred stock, compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute or, to the best of such counsel's knowledge after due inquiry, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Company or any Significant Subsidiary of the Company or any of their material properties or any agreement or instrument for borrowed money to which the Company or any such Significant Subsidiary is a party or by which the Company or any such Significant Subsidiary is bound or to which any of the material properties of the Company or any such Significant Subsidiary is subject, or the charter or by-laws of the Company or any such Significant Subsidiary, and the Company has the corporate power and authority to authorize, issue and sell the Offered Securities as contemplated by the Terms Agreement (including the provisions of this Agreement); (x) the Registration Statement has become effective under the Act, the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) specified in such opinion on the date specified therein, and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, as of its effective date, and the Prospectus, as of the date of the Terms Agreement, and any amendment or supplement thereto, as of its date, complied as to form in all material respects with the requirements of the Act, the Trust Indenture Act and the Rules and Regulations; such counsel has no reason to believe that such Registration Statement, as of its effective date, the Prospectus, as of the date of the Terms Agreement or as of the Closing Date, or any amendment thereto, as of its date or as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of the date of the Terms Agreement or as of the Closing Date, or any amendment or supplement thereto, as of its date or as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and such counsel does 15 15 not know of any legal or governmental proceedings required to be described in the Prospectus which are not described as required or of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required; it being understood that such counsel need express no opinion as to the financial statements and related Schedules therein or other financial or statistical data contained or incorporated by reference in the Registration Statement or the Prospectus; and (xi) the Terms Agreement (including the provisions of this Agreement) and, if the Offered Securities are debt securities or preferred stock, any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company. In rendering such opinion, Augustus B. Kinsolving may rely as to all matters governed by New Jersey law on the opinion of Pitney, Hardin, Kipp & Szuch; provided, however, that he will furnish a copy thereof to the Representatives and state in his opinion that he and the Representatives are justified in relying on such opinion of New Jersey counsel for such matters. (f) The Representatives shall have received from Cravath, Swaine & Moore, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Offered Securities, the Registration Statement, the Prospectus and other related matters as the Representatives may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, Cravath, Swaine & Moore may rely as to the incorporation of the Company and all other matters governed by New Jersey law upon the opinion of Pitney, Hardin, Kipp & Szuch referred to above. (g) The Representatives shall have received a certificate, dated the Closing Date, of the President, any Executive Vice President or any Vice-President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date in all material respects, that no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change in the business, properties, financial position or results of operations of the Company and its Subsidiaries taken as a whole except as set forth in or contemplated by the Prospectus or as described in such certificate. (h) The Representatives shall have received a letter, dated the Closing Date, of Coopers & Lybrand which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than five days prior to the Closing Date for the purposes of this subsection. 16 16 The Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. The Lead Underwriter may in its sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters under this Agreement and the Terms Agreement. 6. Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, the Prospectus, or any amendment or supplement thereto, or any related preliminary prospectus or preliminary prospectus supplement, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances in which they were made not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives, if any, specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in the Terms Agreement. (b) Each Underwriter will severally and not jointly indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, the Prospectus, or any amendment or supplement thereto, or any related preliminary prospectus or preliminary prospectus supplement, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives, if any, specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in the Terms Agreement. (c) Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b) above, notify the indemnifying party of the commencement thereof, but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified 17 17 party otherwise than under subsection (a) or (b) above. In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who may, unless actual conflicts exist, be counsel to the indemnifying party, provided that it is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one firm for all such indemnified parties), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonablecosts of investigation. No indemnifying party shall, without the prior written consent of the indemnified party or, if any Underwriter is an idemnified party, without the prior written consent of each Underwriter, effect any settlement of any pending or threatened action in respect of which any indemnified party is a party and indemnity can be sought hereunder by such indemnified party unless such settlement includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action. (d) If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The 18 18 Underwriters' obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint. (e) The obligations of the Company under this Section shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of the Underwriters under this Section shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director of the Company, to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Act. 7. Default of Underwriters. If any Underwriter or Underwriters default in their obligations to purchase Offered Securities under the Terms Agreement and the aggregate principal amount (if debt securities) or number of shares (if preferred stock or Common Stock) of Offered Securities that such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of the total principal amount (if debt securities) or number of shares (if preferred stock or Common Stock) of Offered Securities, the Lead Underwriter may make arrangements satisfactory to the Company for the purchase of such Offered Securities by other persons, including any of the Underwriters, but if no such arrangements are made by the Closing Date, the nondefaulting Underwriters shall be obligated severally, in proportion to their respective commitments under the Terms Agreement (including the provisions of this Agreement), to purchase the Offered Securities that such defaulting Underwriters agreed but failed to purchase. If any Underwriter or Underwriters so default and the aggregate principal amount (if debt securities) or number of shares (if preferred stock or Common Stock) of Offered Securities with respect to which such default or defaults occur exceeds 10% of the total principal amount (if debt securities) or number of shares (if preferred stock or Common Stock) of Offered Securities and arrangements satisfactory to the Lead Underwriter and the Company for the purchase of such Offered Securities by other persons are not made within 36 hours after such default, the Terms Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company, except as provided in Section 8. As used in this Agreement, the term "Underwriter" includes any person substituted for an Underwriter under this Section. Nothing herein will relieve a defaulting Underwriter from liability for its default. If the Offered Securities are debt securities or preferred stock, the respective commitments of the several Underwriters for the purposes of this Section shall be determined without regard to reduction in the respective Underwriters' obligations to purchase the principal amounts (if debt securities) or numbers of shares (if preferred stock) of the Offered Securities set forth opposite their names in the Terms Agreement as a result of Delayed Delivery Contracts entered into by the Company. The foregoing obligations and agreements set forth in this Section will not apply if the Terms Agreement specifies that such obligations and agreements will not apply. 8. Survival of Certain Representations and Obligations. The respective indemnities, agreements, representations, warranties and other statements of the Company or its officers and of the several Underwriters set forth in or made pursuant to the Terms Agreement (including the provisions of this Agreement) will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of 19 19 any Underwriter, the Company or any of their respective representatives, officers or directors or any controlling person, and will survive delivery of and payment for the Offered Securities. If the Terms Agreement is terminated pursuant to Section 7 or if for any reason the purchase of the Offered Securities by the Underwriters is not consummated, the Company shall remain responsible for the expenses to be paid or reimbursed by it pursuant to Section 4 and the respective obligations of the Company and the Underwriters pursuant to Section 6 shall remain in effect. If the purchase of the Offered Securities by the Underwriters is not consummated for any reason other than solely because of the termination of the Terms Agreement pursuant to Section 7 or the occurrence of any event specified in clause (iii), (iv) or (v) of Section 5(c), the Company will reimburse the Underwriters for all out-of-pocket expenses (including fees and disbursements of counsel) reasonably incurred by them in connection with the offering of the Offered Securities. 9. Notices. All communications hereunder will be in writing and, if sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed to them at their address furnished to the Company in writing for the purpose of communications hereunder or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it at 180 Maiden Lane, New York, New York 10038, Attention: Augustus B. Kinsolving, Vice President, General Counsel and Secretary. 10. Successors. The Terms Agreement (including the provisions of this Agreement) will inure to the benefit of and be binding upon the Company and such Underwriters as are identified in the Terms Agreement and their respective successors and the officers and directors and controlling persons referred to in Section 6, and no other person will have any right or obligation hereunder. 11. Representation of Underwriters. Any Representatives will act for the several Underwriters in connection with the financing described in the Terms Agreement, and any action under such Terms Agreement (including the provisions of this Agreement) taken by the Representatives jointly or by the Lead Underwriter will be binding upon all the Underwriters. 12. Counterparts. The Terms Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement. 13. Applicable Law. This Agreement and the Terms Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to principles of conflicts of laws. The Company hereby submits to the nonexclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to the Terms Agreement (including the provisions of this Agreement) or the transactions contemplated thereby. 20 ANNEX I (Three copies of this Delayed Delivery Contract should be signed and returned to the address shown below so as to arrive not later than 9:00 A.M., New York time, on , 19 . 1/.) DELAYED DELIVERY CONTRACT ------------------------- [Insert date of initial public offering] ASARCO INCORPORATED c/o Attention: Gentlemen: The undersigned hereby agrees to purchase from ASARCO Incorporated, a New Jersey corporation ("Company"), and the Company agrees to sell to the undersigned, [If one delayed closing, insert--as of the date hereof, for delivery on , 19 ("Delivery Date"),] [$].............. [shares] - --principal amount--of the Company's [insert title of securities] ("Securities"), offered by the Company's Prospectus dated , 1994, and a Prospectus Supplement dated , 19 , relating thereto, receipt of copies of which is hereby acknowledged, at-- % of the principal amount thereof plus accrued interest, if any,--$ per share plus accrued dividends, if any,--and on the further terms and conditions set forth in this Delayed Delivery Contract ("Contract"). [If two or more delayed closings, insert the following: The undersigned will purchase from the Company as of the date hereof, for delivery on the dates set forth below, Securities in the-- principal--amounts set forth below: - --------------------------- 1/ Insert date which is third full business day prior to Closing Date under the Terms Agreement. 21 2
Principal Amount ---------------- Number Delivery Date of Shares ------------- --------- --------------- --------- --------------- ---------
Each of such delivery dates is hereinafter referred to as a Delivery Date.] Payment for the Securities that the undersigned has agreed to purchase for delivery on--the--each--Delivery Date shall be made to the Company or its order by certified or official bank check in New York Clearing House (next day) funds at the office of at .M. on--the--such-- Delivery Date upon delivery to the undersigned of the Securities to be purchased by the undersigned--for delivery on such Delivery Date--in definitive [If debt issue, insert--fully registered] form and in such denominations and registered in such names as the undersigned may designate by written or telegraphic communication addressed to the Company not less than five full business days prior to-the-such-Delivery Date. It is expressly agreed that the provisions for delayed delivery and payment are for the sole convenience of the undersigned; that the purchase hereunder of Securities is to be regarded in all respects as a purchase as of the date of this Contract; that the obligation of the Company to make delivery of and accept payment for, and the obligation of the undersigned to take delivery of and make payment for, Securities on--the--each--Delivery Date shall be subject only to the conditions that (1) investment in the Securities shall not at--the--such--Delivery Date be prohibited under the laws of any jurisdiction in the United States to which the undersigned is subject and (2) the Company shall have sold to the Underwriters the total--principal amount--number of shares--of the Securities less the--principal amount--number of shares--thereof covered by this and other similar Contracts. The undersigned represents that its investment in the Securities is not, as of the date hereof, prohibited under the laws of any jurisdiction to which the undersigned is subject and which governs such investment. Promptly after completion of the sale to the Underwriters the Company will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by copies of the opinions of counsel for the Company delivered to the Underwriters in connection therewith. This Contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other. It is understood that the acceptance of any such Contract is in the Company's sole discretion and, without limiting the foregoing, need not be on a first-come, first-served basis. If this Contract is acceptable to the Company, it is requested that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the 22 3 undersigned at its address set forth below. This will become a binding contract between the Company and the undersigned when such counterpart is so mailed or delivered. Yours very truly, -------------------------- (Name of Purchaser) by -------------------------- (Title of Signatory) -------------------------- (Address of Purchaser) Accepted, as of the above date. ASARCO INCORPORATED, by -------------------------- [Insert Title] 23 ASARCO INCORPORATED ("Company") Debt Securities TERMS AGREEMENT , 19 To: The [Representative[s] of the] Underwriters identified herein Dear Sirs: The undersigned agrees to sell to the several Underwriters named [in Schedule A hereto] [below] for their respective accounts, on and subject to the terms and conditions of the Underwriting Agreement filed as an exhibit to the Company's registration statement on Form S-3 (No. 33- ) ("Underwriting Agreement"), the following securities ("Offered Securities") on the following terms: Title: [ %] [Floating Rate]--Notes--Debentures--Bonds--Due . Principal Amount: $ . Interest: [ % per annum, from 19 , payable semiannually on and , commencing , 19 , to holders of record on the preceding or , as the case may be.] [Zero coupon.] Maturity: , 19 . Optional Redemption: Sinking Fund: Listing: [None.] [New York Stock Exchange.] Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be , 19 . Underwriters' fee is % of the principal amount of the Contract Securities.] Purchase Price: % of principal amount, plus accrued interest[, if any,] from 19 . Expected Reoffering Price: % of principal amount, subject to change by the [Representative[s]] [Underwriters]. 24 2 Closing: A.M. on , 19 , at , in New York Clearing House (next day) funds. Settlement and Trading: [Physical certificated form.] [Book-Entry Only via DTC. The Offered Securities [will] [will not] trade in DTC's Same Day Funds Settlement System.] Blackout: Until days after the Closing Date. [Name[s] and Address[es] of [Representative[s]] [Underwriter[s]]:] The respective principal amounts of the Offered Securities to be purchased by each of the Underwriters are set forth opposite their names in Schedule A hereto. The provisions of the Underwriting Agreement are incorporated herein by reference. The Offered Securities will be made available for checking and packaging at the office of at least 24 hours prior to the Closing Date. For purposes of Section 6 of the Underwriting Agreement, the only information furnished to the Company by any Underwriter for use in the Prospectus consists of [(i)] the following information in the Prospectus furnished on behalf of each Underwriter: the last paragraph at the bottom of the prospectus supplement cover page concerning the terms of the offering by the Underwriters, the legend concerning over-allotments--and--, --stabilizing [and passive market making] on the inside front cover page of the prospectus supplement--and--, --the concession and reallowance figures appearing in the paragraph under the caption "Underwriting" in the prospectus supplement. If paragraph regarding passive market making is included,insert---and the information contained in the paragraph under the caption "Underwriting" in the prospectus supplement] [If applicable, insert--; and (ii) the following information in the prospectus supplement furnished on behalf of [insert name of Underwriter]: [insert description of information, such as material relationship disclosure under the caption "Underwriting" in the prospectus supplement]. If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a binding agreement between the Company and the several Underwriters in accordance with its terms. Very truly yours, ASARCO INCORPORATED, by ----------------------- [Insert Title] 25 3 The foregoing Terms Agreement is hereby confirmed and accepted as of the date first above written. [If no corepresentative, use first confirmation form. If corepresentative, use second.] by ------------------------------- [Insert Title] [Acting on behalf of itself and as the Representative of the several Underwriters.] [Acting on behalf of themselves and as the Representatives of the several Under- writers.] by by ------------------------------- [Insert Title] 26 ASARCO INCORPORATED ("Company") Warrants TERMS AGREEMENT , 19 To: The [Representative[s] of the] Underwriters identified herein Dear Sirs: The undersigned agrees to sell to the several Underwriters named [in Schedule A hereto] [below] for their respective accounts, on and subject to the terms and conditions of the Underwriting Agreement filed as an exhibit to the Company's registration statement on Form S-3 (No. 33- ) ("Underwriting Agreement"), the following securities ("Offered Securities") on the following terms: Description of Warrants: Title of Warrants: Warrant Agent: Warrant exercise price, currency and date: Principal amount and currency of Securities issuable upon exercise of one Warrant: Date after which Warrants may be exercised: Expiration date: Detachable date: Description of Securities issuable upon exercise of Warrants: 27 2 Description of Currency Warrants: Title of Currency Warrants: Number of Currency Warrants: Principal Amount of Each Currency Warrant: Currency: Price to Public of Currency Warrants: Underwriting Discount: Purchase Price of Currency Warrants: Currency Warrants Exercise Price and Date: Expiration Date: Currency Warrant Agent: Listing: [None.] [New York Stock Exchange.] Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be , 19 . Underwriters' fee is % of the principal amount of the Contract Securities.] Purchase Price: % of principal amount, plus accrued interest[, if any,] from 19 . Expected Reoffering Price: % of principal amount, subject to change by the [Representative[s]] [Underwriters]. Closing: A.M. on , 19 , at , in New York Clearing House (next day) funds. Settlement and Trading: [Physical certificated form.] [Book-Entry Only via DTC. The Offered Securities [will] [will not] trade in DTC's Same Day Funds Settlement System.] Blackout: Until days after the Closing Date. [Name[s] and Address[es] of [Representative[s]] [Underwriter[s]]:] The respective principal amounts of the Offered Securities to be purchased by each of the Underwriters are set forth opposite their names in Schedule A hereto. The provisions of the Underwriting Agreement are incorporated herein by reference. 28 3 The Offered Securities will be made available for checking and packaging at the office of at least 24 hours prior to the Closing Date. For purposes of Section 6 of the Underwriting Agreement, the only information furnished to the Company by any Underwriter for use in the Prospectus consists of [(i)] the following information in the Prospectus furnished on behalf of each Underwriter: the last paragraph at the bottom of the prospectus supplement cover page concerning the terms of the offering by the Underwriters, the legend concerning over-allotments--and-- , --stabilizing [and passive market making] on the inside front cover page of the prospectus supplement--and--, --the concession and reallowance figures appearing in the paragraph under the caption "Underwriting" in the prospectus supplement. If paragraph regarding passive market making is included, insert---and the information contained in the paragraph under the caption "Underwriting" in the prospectus supplement] [If applicable, insert--; and (ii) the following information in the prospectus supplement furnished on behalf of [insert name of Underwriter]: [insert description of information, such as material relationship disclosure under the caption "Underwriting" in the prospectus supplement]. If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a binding agreement between the Company and the several Underwriters in accordance with its terms. Very truly yours, ASARCO INCORPORATED, by -------------------------- [Insert Title] The foregoing Terms Agreement is hereby confirmed and accepted as of the date first above written. [If no corepresentative, use first confirmation form. If corepresentative, use second.] by -------------------------------- [Insert Title] [Acting on behalf of itself and as the Representative of the several Underwriters.] 29 4 [Acting on behalf of themselves and as the Representatives of the several Under- writers.] by by -------------------------------- [Insert Title] 30 SCHEDULE A
Principal Underwriter Amount ----------- ------ $ $ ----------------- Total . . . . . . . . . . . . . . . $ =================
31 ASARCO INCORPORATED ("Company") [Common Stock] [Preferred Stock] Depositary Shares] TERMS AGREEMENT , 19 To: The [Representative[s] of the] Underwriters identified herein Dear Sirs: The undersigned agrees to sell to the several Underwriters named [in Schedule A hereto] [below] for their respective accounts, on and subject to the terms and conditions of the Underwriting Agreement filed as an exhibit to the Company's registration statement on Form S-3 (No. 33- ) ("Underwriting Agreement"), the following securities ("Offered Securities") on the following terms: Title: Number of [Depositary] Shares: Dividend Rate: Optional Redemption: Sinking Fund: Listing: [None.] [New York Stock Exchange.] Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be , 19 . Underwriters' fee is $ per share of the Contract Securities.] Purchase Price: $ per [Depositary] share [If preferred stock issue, insert-plus accrued dividends[, if any,] from , 19 ]. Expected Reoffering Price: $ per share, subject to change by the [Representative[s]] [Underwriters]. [Depositary Receipt Arrangements:] 32 2 [Name of Depositary:] [Date of Deposit Agreement:] [Fraction of a Share equal to one Depositary Share:] Closing: A.M. on , 19 , at , in New York Clearing House (next day) funds. Underwriter[s']['s] Compensation: $ payable to the [Representative[s] for the proportionate accounts of the] Underwriter[s] on the Closing Date. Blackout: Until days after the Closing Date. [Name[s] and Address[es] of [Representative[s]] [Underwriter[s]]:] The respective numbers of shares of the Offered Securities to be purchased by each of the Underwriters are set forth opposite their names in Schedule A hereto. The provisions of the Underwriting Agreement are incorporated herein by reference. The Offered Securities will be made available for checking and packaging at the office of at least 24 hours prior to the Closing Date. For purposes of Section 6 of the Underwriting Agreement, the only information furnished to the Company by any Underwriter for use in the Prospectus consists of [(i)] the following information in the Prospectus furnished on behalf of each Underwriter: the last paragraph at the bottom of the prospectus supplement cover page concerning the terms of the offering by the Underwriters, the legend concerning over allotments--and--,--stabilizing [and passive market making] on the inside front cover page of the prospectus supplement-and-, -the concession and reallowance figures appearing in the paragraph under the caption "Underwriting" in the prospectus supplement [If paragraph regarding passive market making is included, insert--and the information contained in the paragraph under the caption "Underwriting" in the prospectus supplement] [If applicable, insert--; and (ii) the following information in the prospectus supplement furnished on behalf of [insert name of Underwriter]: [insert description of information, such as material relationship disclosure under the caption "Underwriting" in the prospectus supplement.] 33 3 If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a binding agreement between the Company and the several Underwriters in accordance with its terms. Very truly yours, ASARCO INCORPORATED, by ------------------------- [Insert Title] - ---------------- The foregoing Terms Agreement is hereby confirmed and accepted as of the date first above written. [If no corepresentative, use first confirmation form. If corepresentative, use second.] by ------------------------------- [Insert Title] [Acting on behalf of itself and as the Representative of the several Underwriters.] [Acting on behalf of themselves and as the Representatives of the several Under- writers.] by ------------------------------- [Insert Title] 34 SCHEDULE A
Number Underwriter of Shares ----------- --------- ----------------- Total . . . . . . . . . . . . . . . =================
EX-4.1 3 FORM OF INDENTURE 1 EXHIBIT 4.1 ============================================== ASARCO INCORPORATED TO CHEMICAL BANK, Trustee _____________ INDENTURE Dated as of October 1, 1994 ____________ ============================================== 2 Reconciliation and tie between Indenture, dated as of October 1, 1994 and the Trust Indenture Act of 1939, as amended ("TIA").
Indenture TIA Section Section - ----------- --------- 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609 (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609 (a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA (a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 610; TIA 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613; TIA (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613; TIA (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702; TIA (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c); TIA 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703; TIA (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703; TIA (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703; TIA (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703; TIA 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704; TIA (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 (c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 (c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601; 603; TIA (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602; TIA (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA (d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA (d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603; TIA (d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603; TIA (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA 316(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502; 512 (a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
3 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 507; 508 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108; TIA
- --------------------- This reconciliation and tie section does not constitute part of the Indenture. 4 TABLE OF CONTENTS
Page ---- PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Authorization of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Compliance with Legal Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARTICLE ONE Definitions and Other Provisions of General Application Section 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Attributable Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Capitalized Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Closing Price Per Share . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Consolidated Net Tangible Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Converting Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Determination Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
- ----------------------- NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture. (i) 5
Page ---- ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Nonrecourse Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 NYSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 original issue date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Overdue Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Principal Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Redemption Rescission Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Registered Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Rescission Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Significant Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Specified Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Surrendered Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Trading Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
- ---------------------------- NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture. (ii) 6
Page ---- Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Section 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Section 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Section 104. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Section 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Section 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Section 107. Incorporators, Stockholders, Officers and Directors of Company Exempt from Individual Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Section 108. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Section 109. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 110. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 111. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 112. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 113. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 115. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 ARTICLE TWO Security Forms Section 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Section 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Section 203. Additional Provisions Required in Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 ARTICLE THREE The Securities Section 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Section 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Section 303. Execution, Authentication, Delivery and Dating of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Section 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
- ------------------------- NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture. (iii) 7
Page ---- Section 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Section 306. Mutilated, Defaced, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Section 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Section 311. Securities Denominated in Foreign Currencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Section 312. Compliance with Certain Laws and Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 ARTICLE FOUR Satisfaction and Discharge Section 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Section 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 ARTICLE FIVE Remedies Section 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Section 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Section 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Section 505. Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Section 506. Application of Moneys Collected by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Section 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Section 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Section 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Section 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
- ----------------------- NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture. (iv) 8
Page ---- Section 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Section 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Section 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 ARTICLE SIX The Trustee Section 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Section 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Section 603. Certain Rights of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Section 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Section 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Section 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Section 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Section 608. Right to Rely on Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Section 609. Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Section 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Section 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Section 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Section 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Section 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 ARTICLE SEVEN Holders' List and Reports by Trustee and Company Section 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Section 702. Preservation of Information; Communications to Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Section 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Section 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
- -------------------------- NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture. (v) 9
Page ---- ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease Section 801. Company May Consolidate, Etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Section 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 ARTICLE NINE Supplemental Indentures Section 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Section 902. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Section 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Section 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Section 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Section 906. Reference in Securities to Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 ARTICLE TEN Covenants Section 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Section 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Section 1003. Money for Securities Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Section 1004. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Section 1005. Limitation on Sales and Leasebacks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Section 1006. Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 Section 1007. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 ARTICLE ELEVEN Redemption of Securities Section 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 Section 1102. Election to Redeem; Notice to
- ----------------------------- NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture. (vi) 10
Page ---- Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Section 1103. Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Section 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Section 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Section 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Section 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Section 1108. Rescission of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 ARTICLE TWELVE Sinking Funds Section 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Section 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 Section 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 ARTICLE THIRTEEN Defeasance Section 1301. Applicability of Article; Company's Option to Effect Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Section 1302. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Section 1303. Covenant Defeasance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Section 1304. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Section 1305. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Section 1306. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 ARTICLE FOURTEEN Convertible Securities Section 1401. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
- ------------------------- NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture. (vii) 11
Page ---- Section 1402. Right of Holders to Convert Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Section 1403. Issuance of Shares of Capital Stock on Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Section 1404. No Payment or Adjustment for Interest or Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Section 1405. Adjustment of Conversion Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Section 1406. No Fractional Shares to be Issued . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Section 1407. Preservation of Conversion Rights Upon Consolidation, Merger, Sale or Conveyance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Section 1408. Notice to Holders of Securities of a Series Prior to Taking Certain Types of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 Section 1409. Covenant to Reserve Shares for Issuance on Conversion of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 Section 1410. Compliance with Governmental Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Section 1411. Payment of Taxes Upon Certificates for Shares Issued Upon Conversion of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Section 1412. Trustee's Duties with Respect to Conversion Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Section 1413. Corporate Action Regarding Par Value of Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Section 1414. Company Determination Final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 ARTICLE FIFTEEN Subordination Section 1501. Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Section 1502. Payments to Holders of Subordinated Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Section 1503. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Section 1504. Authorization by Holders of Subordinated Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Section 1505. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Section 1506. Trustee's Relation to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
- ------------------------ NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture. (viii) 12 Page ---- Section 1507. No Impairment of Subordination . . . . . . . . . . . 109 Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Acknowledgments - --------------------- NOTE: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture. (ix) 13 THIS INDENTURE, dated as of October 1, 1994 between ASARCO Incorporated, a corporation duly organized and existing under the laws of the State of New Jersey (herein called the "Company"), having its principal office at 180 Maiden Lane, New York, New York 10038, and Chemical Bank, a New York corporation, as Trustee (herein called the "Trustee"). RECITALS OF THE COMPANY The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness, which may be convertible into shares of Capital Stock (as such term is hereinafter defined) of the Company (such debentures, notes or other evidences of indebtedness herein called the "Securities") to be issued in one or more series as in this Indenture provided. All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is agreed for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows: ARTICLE ONE Definitions and Other Provisions of General Application Section 101. Definitions. For all purposes of this Indenture and of any indenture supplemental hereto, except as otherwise expressly provided or unless the context otherwise requires: (1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (2) all other terms used herein which are defined in the Trust Indenture Act or by Commission rule under the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; 14 (3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with United States generally accepted accounting principles; and (4) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. Certain terms, used principally in Article Six, are defined in that article. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Attributable Debt" means, as to any particular Capitalized Lease under which any Person is at the time liable, at any date as of which the amount thereof is to be determined, the total net amount of rent required to be paid by such Person under such Capitalized Lease during the remaining primary term thereof, discounted from the respective due dates thereof to such date at the rate of interest per annum implicit in the terms of such Capitalized Lease, as determined in good faith by the Company, compounded semi-annually. The net amount of rent required to be paid under any such Capitalized Lease for any such period shall be the amount of the rent payable by the lessee with respect to such period, after excluding amounts required to be paid on account of maintenance, repairs, insurance, taxes, assessments, water rates and similar charges. In the case of any Capitalized Lease which is terminable by the lessee upon the payment of a penalty, such net amount shall also include the amount of such penalty, but shall not include any rent required to be paid under such Capitalized Lease subsequent to the first date upon which it may be so terminated. "Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate Securities of one or more series. "Authorized Newspaper" means a newspaper of general circulation, in the official language of the country of publication or in the English language, customarily -2- 15 published on each Business Day whether or not published on Saturdays, Sundays or holidays. Whenever successive publications in an Authorized Newspaper are required hereunder they may be made (unless otherwise expressly provided herein) on the same or different days of the week and in the same or different Authorized Newspapers. "Bearer Security" means any Security issued under this Indenture which is payable to bearer. "Board of Directors" means either the board of directors of the Company or any duly authorized committee of that board or any directors and/or officers of the Company to whom that board or committee shall have duly delegated its authority. "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Business Day" means, except as may otherwise be provided herein or in any Security, when used with respect a location, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that location are authorized or obligated by law or executive order to close. "Capital Stock" means any stock of any class of the Company. "Capitalized Lease" means any lease which has been capitalized by the Company. "Closing Price Per Share" means, with respect to the Capital Stock of the Company, for any day the last reported sales price per share (i) on the New York Stock Exchange, Inc. as reported in the Wall Street Journal (or other similar newspaper) for New York Stock Exchange Composite Transactions (or, if no such sale is so reported on such day, the average of such reported closing bid and asked prices regular way) or, if the Capital Stock is not listed or admitted to trading on such Exchange, on the principal (as determined by the Company's Board of Directors) national securities exchange on which the Capital Stock is listed or admitted to trading or, (ii) if not listed or admitted to trading on any national securities exchange, on the National Association of Securities Dealers Automated Quotations National Market System; or if the Capital Stock is not listed or admitted to trading on any national securities exchange or quoted on such National Market System, the average of the -3- 16 closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Company for that purpose. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, as amended, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date. "Company" means the Person named as the "Company" in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person. "Company Order" and "Company Request" mean, respectively, a written order or request signed in the name of the Company by both (i) its Chairman of the Board of Directors, its Vice Chairman of the Board of Directors, its President or a Vice President, and (ii) its Treasurer, an Assistant Treasurer, its Controller, an Assistant Controller, its Secretary or an Assistant Secretary, and delivered to the Trustee. "Consolidated Net Tangible Assets" means the aggregate amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (i) all current liabilities (excluding any thereof constituting Funded Debt by reason of being renewable or extendable) and (ii) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles, all as set forth on the most recent balance sheet of the Company and its consolidated Subsidiaries and computed in accordance with generally accepted accounting principles. "Converting Holder" has the meaning specified in Section 1403. "Corporate Trust Office" means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which office at the date hereof is located at 450 West 33rd Street, 15th Floor, New York, New York 10001. "Corporation" includes corporations, associations, companies, joint-stock companies and business trusts. -4- 17 "Coupon" means any interest coupon appertaining to a Bearer Security. "Debt" has the meaning specified in Section 1004. "Defaulted Interest" has the meaning specified in Section 307. "Depositary" means, with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, the Person designated as Depositary by the Company pursuant to Section 301 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Depositary" shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, "Depositary" as used with respect to the Securities of any such series shall mean the Depositary with respect to the Securities of that series. "defeasance" and "covenant defeasance" have the respective meanings specified in Sections 1302 and 1303. "Determination Date" has the meaning specified in Section 1405. "ECU" means the European Currency Unit as defined and revised from time to time by the Council of the European Communities. "Event of Default" has the meaning specified in Section 501. "Funded Debt" means all indebtedness for money borrowed having a maturity of more than 12 months from the date as of which the amount thereof is to be determined or having a maturity of less than 12 months but by its terms being renewable or extendable beyond 12 months from such date at the option of the borrower. "Global Security" means a Security bearing the legend prescribed in Section 203 evidencing all or part of a series of Securities, issued to the Depositary for such series or its nominee, and registered in the name of such Depositary or nominee. "Government Obligations" has the meaning specified in Section 1304. "Holder" means, with respect to a Registered Security, a Person in whose name a Security is registered in -5- 18 the Security Register and, with respect to a Bearer Security, a bearer thereof or of a Coupon appertaining thereto. "Indenture" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument, and any such supplemental indenture, the mandatory provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term "Indenture" shall also include the terms of particular series of Securities established as contemplated in Section 301. "interest" means, when used with respect to a non-interest bearing Security, interest payable after the principal thereof has become due and payable whether at Maturity, by declaration of acceleration, by call for redemption, pursuant to a sinking fund or otherwise, and, when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, interest payable after Maturity. "Interest Payment Date", when used with respect to any Security, means the Stated Maturity of an instalment of interest on such Security. "Maturity", when used with respect to any Security, means the date on which the principal of such Security or an instalment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, pursuant to a sinking fund or otherwise. "Mortgage" has the meaning specified in Section 1004. "Nonrecourse Obligation" has the meaning specified in Section 1004. "NYSE" means the New York Stock Exchange, Inc. "Officers' Certificate" means a certificate signed by both (a) the Chairman of the Board of Directors, a Vice Chairman of the Board of Directors, the President or a Vice President and (b) the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered to the Trustee. Each such Officers' Certificate shall include the statements required by Section 102 hereunder. -6- 19 "Opinion of Counsel" means a written opinion of counsel, who may be an employee of or counsel for the Company. "original issue date" of any Security (or portion thereof) means the earlier of (a) the date of such Security or (b) the date of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution. "Original Issue Discount Security" means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502. "Outstanding" when used with respect to Securities, means, except as otherwise required by the Trust Indenture Act as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except: (a) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (b) Securities, or portions thereof, for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities and of any Coupons; provided, however, that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; (c) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; and (d) Securities which have been converted into Capital Stock in accordance with Article Fourteen hereof, if the terms of such Securities provide for convertibility pursuant to Section 301. -7- 20 provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities of any series have taken any action (including the making of any request, demand, authorization or direction), the giving of any notice, consent or waiver (or the taking of any other action) hereunder and in determining voting rights of any Holder of a Security hereunder (i) the principal amount of Original Issue Discount Securities that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 502 and (ii) the principal amount of any Security, the principal amount of which is denominated in a Specified Currency, shall be deemed to be that amount as determined in accordance with Section 311 (or, in the case of any Original Issue Discount Security, the amount determined in accordance with clause (i) above as well as Section 311), and (iii) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or any such other obligor. In case of a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made by the Trustee in accordance with such advice. "Overdue Rate" means, unless otherwise specified in the Securities of any series, the same rate as the rate of interest specified in the Securities of such series or, in the case of a series of Original Issue Discount Securities, the Yield to Maturity of such series of Securities. "Paying Agent" means any Person authorized by the Company to pay the principal of or any premium or interest on any Securities on behalf of the Company. "Person" means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of -8- 21 the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security. "Principal Property" means any smelters, refineries, mines, concentrators or other facilities, located within the present 50 States of the United States of America (excluding the territories and possessions of the United States of America) and owned by the Company or any Subsidiary, in each case the gross book value (without deduction of any depreciation reserves) of which on the date as of which the determination is being made exceeds 3% of Consolidated Net Tangible Assets, other than any such facility or portion thereof which is pollution control or other equipment or facility financed by obligations issued by a State or local government unit; provided, however, that Principal Property shall not include any smelters, refineries, mines, concentrators or facilities or any portions thereof which the Board of Directors of the Company declares by resolution are not of material importance to the total business conducted by the Company and its Subsidiaries as an entirety. "Record Date" for the interest payable on any Interest Payment Date on the Securities of any series means the date specified as such in the terms of the Securities of such series, or, if no such date is so specified, if such Interest Payment Date is the first day of a calendar month, the fifteenth day of the next preceding calendar month or, if such Interest Payment Date is the fifteenth day of a calendar month, the last day of the preceding calendar month, whether or not such Record Date is a Business Day. "Redemption Date", when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture. "Redemption Price", when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture. "Redemption Rescission Event" means the occurrence of (a) any general suspension of trading in, or limitation on prices for, securities on the principal national securities exchange on which shares of Capital Stock are registered and listed for trading (or, if shares of Capital Stock are not registered and listed for trading on any such exchange, in the over-the-counter market) for more than six-and-one-half (6-1/2) consecutive trading hours, (b) any decline in either -9- 22 the Dow Jones Industrial Average or the Standard & Poor's Index of 400 Industrial Companies (or any successor index published by Dow Jones & Company, Inc. or Standard & Poor's Corporation) by either (i) an amount in excess of 10%, measured from the close of business on any Trading Day to the close of business on the next succeeding Trading Day during the period commencing on the Trading Day preceding the day notice of any redemption of Securities is given (or, if such notice is given after the close of business on a Trading Day, commencing on the Trading Day) and ending at the time and date fixed for redemption in such notice or (ii) an amount in excess of 15% (or if the time and date fixed for redemption is more than 15 days following the date on which such notice of redemption is given, 20%), measured from the close of business on the Trading Day preceding the day notice of such redemption is given (or, if such notice is given after the close of business on a Trading Day, from such Trading Day) to the close of business on any Trading Day at or prior to the time and date fixed for redemption, (c) a declaration of a banking moratorium or any suspension of payments in respect of banks by Federal or state authorities in the United States or (d) the commencement of a war or armed hostilities or other national or international calamity directly or indirectly involving the United States which in the reasonable judgement of the Company could have a material adverse effect on the market for the Capital Stock. "Registered Holder" means the Holder of a Registered Security. "Registered Security" means any Security issued under this Indenture which is registered as to principal and interest in the Security Register. "Rescission Date" has the meaning specified in Section 1108. "Responsible Officer", when used with respect to the Trustee, means any officer of the Trustee with direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject. "Securities" has the meaning stated in the first recital of this Indenture and more particularly means any Bearer Security, including any Coupon appertaining thereto, or any Registered Security authenticated and delivered under this Indenture. -10- 23 "Security Register" and "Security Registrar" have the respective meanings specified in Section 305. "Senior Indebtedness" means all Debt of the Company including principal and interest (and premium, if any) (including, without limitation, any interest that would accrue but for the occurrence of any event specified in Section 501(6) or (7) hereunder) on such Debt, created, incurred or assumed on or after the date of the first issuance of any subordinated Securities, except (i) existing subordinated Securities, (ii) such indebtedness as is by its terms expressly stated to be junior in right of payment to subordinated Securities, and (iii) such indebtedness as is by its terms expressly stated to rank pari passu with, the subordinated Securities. "Significant Subsidiary" means any Subsidiary of the Company which owns a Principal Property and any Subsidiary which owns directly or indirectly stock of a Significant Subsidiary. "Special Record Date" has the meaning specified in Section 307. "Specified Currency" means a currency other than United States dollars or units of currencies or a composite currency. "Stated Maturity", when used with respect to any Security or any instalment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such instalment of principal or interest is due and payable. "Subsidiary" means a corporation whose accounts are consolidated with those of the Company in accordance with generally accepted accounting principles. "Surrendered Securities" has the meaning specified in Section 1403. "Trading Day" means, with respect to the Capital Stock, so long as the Capital Stock is listed or admitted to trading on the NYSE, a day on which the NYSE is open for the transaction of business, or, if the Capital Stock is not listed or admitted to trading on the NYSE, a day on which the principal national securities exchange on which the Capital Stock is listed is open for the transaction of business, or, if the Capital Stock is not so listed or admitted for trading on any national securities exchange, a day on which NASDAQ is open for the transaction of business. -11- 24 "Trust Indenture Act" (except as otherwise provided in Section 905) means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. "Trustee" means the Person named as the "Trustee" in the first paragraph of this Indenture 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. "Vice President", when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title of "vice president". "Yield to Maturity" means, in the case of any Original Issue Discount Security, the yield to maturity specified in such Security or in a Board Resolution relating thereto. Section 102. Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers' Certificate, if to be given by any officer of the Company, or Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include (1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or -12- 25 opinion are based; (3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. Section 103. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Any certificate or opinion of any independent firm of public accountants filed with the Trustee shall contain a statement that such firm is independent. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. -13- 26 Section 104. Acts of Holders; Record Dates. (a) Whenever in this Indenture it is provided that the Holders of a specified percentage in aggregate principal amount of the Securities of any series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action the Holders of such specified percentage have joined therein may be evidenced (1) by any instrument or any number of instruments of similar tenor executed by such Holders in person or by agent or proxy appointed in writing, or (2) by the record of such Holders of Securities voting in favor thereof at any meeting of such Holders duly called and held, or (3) by a combination of such instrument or instruments and any such record of such a meeting of such Holders; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments and/or such record are delivered to the Trustee. Proof of execution of any instrument or of a writing appointing any such agent or proxy shall be sufficient for any purpose of this Indenture and (subject to the requirements of the Trust Indenture Act and Section 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 104. Without limiting the generality of the foregoing, a Holder, including a Depositary that is a Holder of a Global Security, may make, give or take, by a proxy or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted in this Indenture to be made, given or taken by Holders, and a Depositary that is a Holder of a Global Security may provide its proxy or proxies to the beneficial owners of interest in any such Global Security. (b) Subject to the requirements of the Trust Indenture Act and Sections 601 and 603, proof of the execution of any instrument by a Holder or his agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. (c) If the Company shall solicit from the Registered Holders any demand, request, notice, consent, waiver or the taking of any other action, the Company may, at its option, by a Board Resolution, fix in advance a record date for the determination of Registered Holders entitled to give such demand, request, notice, consent or waiver or to take such other action, but the Company shall have no obligation to do so. If such a record date is fixed, such -14- 27 demand, request, notice, consent, waiver or other action may be given before or after the record date, but only the Registered Holders of record at the close of business on the record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite percentage of Securities Outstanding have authorized or agreed or consented to such demand, request, notice, consent, waiver or taking of any other action, and for that purpose the Securities Outstanding shall be computed as of the record date; provided, however, that no such demand, request, notice, consent, waiver or taking of any other action by the Holders on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the Record Date. (d) The ownership of Registered Securities shall be proved by the Security Register or by a certificate of the Person designated by the Company to keep the Security Register and to act as repository in accordance with the provisions of Section 305. (e) Any request, demand, authorization, direction, notice, consent, waiver or other act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security. (f) At any time prior to (but not after) the evidencing to the Trustee of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action, any Holder of a Security the serial number or other distinguishing symbol of which is shown by the evidence to be included among the serial numbers or other distinguishing symbols of the Securities the Holders of which have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke such action so far as concerns such Security. Section 105. Notices, Etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, -15- 28 (1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Department, or (2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company. Section 106. Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, (i) if any of the Securities affected by such event are Registered Securities, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any) prescribed for the giving of such notice, and, (ii) if any of the Securities affected by such event are Bearer Securities, notice to the Holders thereof shall be sufficiently given (unless otherwise herein or in the terms of such Bearer Securities expressly provided) if published once in an Authorized Newspaper in New York, New York, and in such other city or cities, if any, as may be specified as contemplated in Section 301. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. In any case where notice is given to Holders by publication, neither the failure to publish such notice, nor any defect in any notice so published, shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. Notwithstanding anything to the contrary elsewhere -16- 29 in this Indenture as to the giving of notice, any other form of written notice is sufficient, if received. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give any notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. If it is impossible or, in the opinion of the Trustee, impracticable to give any notice by publication in the manner herein required, then such publication in lieu thereof as shall be made with the approval of the Trustee shall constitute a sufficient publication of such notice. Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication. Section 107. Incorporators, Stockholders, Officers and Directors of Company Exempt from Individual Liability . No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such, or against any past, present or future stockholder, official or director, as such, of the Company or of any successor, either directly or through the Company or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities. Section 108. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be. -17- 30 Section 109. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. Section 110. Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not. Section 111. Separability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 112. Benefits of Indenture. Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture. Section 113. Governing Law. This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York. Section 114. Legal Holidays. In any case where any Interest Payment Date, Redemption Date, Stated Maturity or Maturity of any Security shall not be a Business Day at the place of payment, then (notwithstanding any other provision on this Indenture or of the Securities (other than a provision of the Securities of any series which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made on such date, but may be made on the next succeeding Business Day in such place with the same force and effect as if made on such Interest Payment Date or Redemption Date or at the Stated Maturity or Maturity, provided, however, that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, Stated Maturity or Maturity, as the case may be. -18- 31 Section 115. Counterparts. This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. ARTICLE TWO Security Forms Section 201. Forms Generally. The Securities of each series and any Coupons to be attached thereto shall be substantially in such form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any applicable law, rule or regulation or with the rules of any securities exchange or as may, consistent with the provisions of this Indenture, be determined by the officers executing such Securities, as evidenced by their execution of the Securities. Temporary Securities of any series may be issued as permitted by Section 304. If the form of Securities or Coupons of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of any such action taken pursuant thereto, including a copy of the approved form of Securities or Coupons, shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated in Section 303 for the authentication and delivery of such Securities. Any portion of the text of any Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Security. Unless otherwise specified as contemplated in Section 301, Bearer Securities shall have Coupons attached. The definitive Securities and Coupons shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities and Coupons. -19- 32 Section 202. Form of Trustee's Certificate of Authentication. The Trustee's certificate of authentication on all Securities shall be in substantially the following form: This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture. -----------------------------, as Trustee By --------------------------- Authorized Officer Section 203. Additional Provisions Required in Global Security. Any Global Security authenticated and delivered hereunder 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 a Depositary or a nominee thereof. This Security may not be transferred to, or registered or exchanged for Securities registered in the name of, any Person other than the Depositary or a nominee thereof and no such transfer may be registered, except in the limited circumstances described in the Indenture. Every Security authenticated and delivered upon registration or transfer of, or in exchange for or in lieu of, this Security shall be a Global Security subject to the foregoing, except in such limited circumstances." ARTICLE THREE The Securities Section 301. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series. There shall be established in or pursuant to a Board -20- 33 Resolution, a copy of which, certified by the Secretary or an assistant or attesting Secretary of the Company, shall be delivered to the Trustee, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of a particular series, the following: (1) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of all other series); (2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder); (3) the manner in which or the Person to whom any interest on a Registered Security of the series shall be payable, if other than the Person in whose name that Registered Security (or one or more Predecessor Securities) is registered at the close of business on the Record Date for such interest; (4) the date or dates on which the principal of the Securities of the series is payable; (5) the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates (including the Overdue Rate) shall be determined, the date or dates from which such interest shall accrue or the method by which such date or dates may be determined, the Interest Payment Dates on which such interest shall be payable and the Record Dates for the determination of Holders to whom interest is payable; (6) the place or places where the principal of and any premium and interest on Securities of the series shall be payable; (7) the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company, pursuant to any sinking fund or otherwise; (8) the obligation, if any, of the Company to redeem, purchase or repay Securities of the series pur- -21- 34 suant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions (including, without limitation, the type of consideration to be paid by the Company) upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation; (9) the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be repaid, in whole or in part, at the option of the Holder thereof; (10) if other than such coin or currency of the United States of America as at the time of payment is legal tender for payment of public or private debts, the coin or currency (including composite currencies) in which the Securities of the series shall be denominated and, if different, the coin or currency (including composite currencies) in which payment of the principal of, and any premium and interest on, the Securities of the series shall be payable; (11) if the principal of, and any premium and interest on, the Securities of the series are to be payable, at the election of the Company or a Holder thereof, in a coin or currency (including composite currencies) other than that in which the Securities are stated to be payable, the period or periods within which, and the terms and conditions upon which, such election may be made; (12) if the amount of payments of principal of, and any premium and interest on, the Securities of the series may be determined with reference to an index, formula or other method, the manner in which such amounts shall be determined; (13) the applicability, if any, of Section 1302 or Section 1303 to the Securities of such series, or such other means of defeasance or covenant defeasance as may be specified for the Securities and any Coupons of such series, and whether, for the purpose of such defeasance or covenant defeasance, the term "Government Obligations" shall include obligations referred to in the definition of such term which are not obligations of the United States of America or an agency or instrumentality of the United States of America; (14) if other than denominations of $1,000 (or if the Securities are denominated in a currency other than -22- 35 U.S. dollars or in a composite currency, 1,000 units of such other currency or composite currency) and any multiple thereof, the denominations in which Securities of the series shall be issuable; (15) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502 or provable in bankruptcy pursuant to Section 504; (16) if the Securities of the series are Original Issue Discount Securities, the price at which and the date on which Securities of the series are to be issued and the Yield to Maturity at the time of issuance of such series; (17) whether Securities of the series shall be issuable as Registered Securities or Bearer Securities (with or without Coupons), or both, and any restrictions applicable to the offering, sale or delivery of Bearer Securities and, if other than as provided in Section 305, the terms upon which Bearer Securities of a series may be exchanged for Registered Securities of the same series and vice versa; (18) the date as of which any Bearer Securities of the series and any temporary Global Security representing Outstanding Securities of the series shall be dated if other than the original issue date of the first Security of the series to be issued; (19) the forms of the Securities and Coupons, if any, of the series; (20) if and as applicable, that the Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the Depositary or Depositaries for such Global Security or Global Securities and any circumstances other than those set forth in Section 305 in which any such Global Security may be transferred to, and registered and exchanged for Registered Securities in the name of, a Person other than the Depositary for such Global Security or nominee thereof, and in which any such transfer may be registered, or, if other than as provided in Section 305, the circumstances under which any exchange may occur; (21) with respect to such series of Securities, the "stated intervals" and the method of determining the -23- 36 "record date" for purposes of sections 312(a) and 316(c), respectively, of the Trust Indenture Act; (22) whether the Securities of such series will be convertible into any class or combination of classes of Capital Stock, and the terms and conditions upon which such conversion shall be effected (including, without limitation, the initial conversion price or rate, the events giving rise to adjustments to the conversion price or rate and the nature of such adjustments, the conversion period, any provision which gives the Company the right, at its option, to pay to a Holder of the Securities a specified cash amount in lieu of Capital Stock issuable upon such conversion, and any other provisions in addition to or in lieu of those set forth in this Indenture relative to such obligation); (23) whether the Securities of such series shall be subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness as set forth in Article Fifteen hereunder; and (24) any other terms of the series which are not inconsistent with this Indenture. All Securities of any one series shall be substantially identical except as to denomination, interest rate and maturity and except as may otherwise be provided in or pursuant to such Board Resolution or in any such indenture supplemental hereto. The applicable Board Resolution or the applicable supplemental indenture may provide that Securities of any particular series may be issued at various times, with different Maturities and redemption and repayment provisions (if any) and bearing interest at different rates, but shall for all purposes under this Indenture, including, but not limited to, voting and Events of Default, be treated as Securities of a single series. Section 302. Denominations. In the absence of any specification as contemplated in Section 301 with respect to the Securities of any series, any Securities of a series shall be issuable in denominations of U.S. $1,000 (or, if such Securities are denominated in a currency other than United States dollars or in a composite currency, 1,000 units of such other currency or composite currency) and any integral multiple thereof. The Securities of each series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the officers of the Company who execute such Securities may determine with the approval of the Trustee as evidenced by the execution and authentication thereof. -24- 37 Section 303. Execution, Authentication, Delivery and Dating of Securities. The Securities shall be signed on behalf of the Company by its Chairman of the Board of Directors, its Vice Chairman of the Board of Directors, its President or any of its Vice Presidents, under its corporate seal which may, but need not, be attested by its Secretary or any of its Assistant Secretaries. Such signatures may be the manual or facsimile signatures of the present or any future such officers. The seal of the Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. Typographical and other minor errors or defects in any such reproduction of the seal or any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee. In case any officer of the Company who shall have signed any of the Securities shall cease to be such officer before the Security so signed shall be authenticated and delivered by the Trustee or disposed of by the Company, such Security nevertheless may be authenticated and delivered or disposed of as though the person who signed such Security had not ceased to be such officer of the Company; and any Security may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Security, shall be the proper officers of the Company, although at the date of the execution and delivery of this Indenture any such person was not such an officer. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee, in accordance with the Company Order, shall thereupon authenticate and deliver such Securities without any further action by the Company. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities the Trustee shall be entitled to receive, and (subject to the requirements of the Trust Indenture Act) shall be fully protected in relying upon: (1) a copy of any Board Resolution or Board Resolutions relating to such series; (2) an executed supplemental indenture, if any, relating thereto; -25- 38 (3) an Officers' Certificate setting forth the form and terms of the Securities as required pursuant to Sections 201 and 301, respectively, and prepared in accordance with the requirements of the Trust Indenture Act and Section 103; or (4) an Opinion of Counsel, prepared in accordance with the requirements of the Trust Indenture Act and Section 103, which shall state that: (a) if the form of such Securities has been established by or pursuant to a Board Resolution as permitted by Section 201, such form has been established in conformity with the provisions of this Indenture; (b) the terms of such Securities have been established by or pursuant to a Board Resolution as permitted by Section 301 in conformity with the provisions of this Indenture; and (c) such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights generally and to general principles of equity. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Company or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would adversely affect the Trustee's own rights, duties or immunities under this Indenture or otherwise. The Trustee shall not be required to authenticate Securities denominated in a coin or currency other than that of the United States of America if the Trustee reasonably determines that such Securities impose duties or obligations on the Trustee which the Trustee is not able or reasonably willing to accept; provided, however, that the Trustee, upon the request of the Company, will resign as Trustee with -26- 39 respect to Securities of any series as to which such a determination is made, prior to the issuance of such Securities, and will comply with the request of the Company to execute and deliver a supplemental indenture appointing a successor Trustee pursuant to Section 901. Notwithstanding the provisions of Section 301 and this Section 303, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate, Opinion of Counsel and Company Order otherwise required pursuant to this Section 303 at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued. Each Security shall be dated the date of its authentication, shall bear interest, if any, from the date, and shall be payable on the dates, in each case, which shall be specified as contemplated in Section 301. Only such Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, executed by the Trustee by the manual signature of one of its authorized signatories, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 309, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture. Section 304. Temporary Securities. Pending the preparation of definitive Securities for any series, the Company may execute, and upon a Company Order the Trustee shall authenticate and deliver, temporary Securities for such series printed, lithographed, typewritten or otherwise produced. Temporary Securities of any series shall be issuable, with or without coupons, in any authorized denomination, and substantially of the tenor or form of the definitive Securities of such series in lieu of which they are issued but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Company. Temporary Securities may contain -27- 40 such reference to any provisions of this Indenture as may be appropriate. Every temporary Security shall be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities in lieu of which they are issued. Without unreasonable delay the Company shall execute and shall furnish definitive Securities of such series and thereupon temporary Securities of such series may be surrendered (together with any unmatured Coupons) in exchange therefor without charge at each office or agency to be maintained by the Company for that purpose pursuant to Section 1002, and the Trustee shall authenticate and deliver in exchange for such temporary Securities of such series a like aggregate principal amount of definitive Securities of the same series of authorized denominations having the same interest rate, Maturity and redemption and repayment provisions and bearing interest from the same date as such temporary Securities; provided, however, that no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided further that no definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security unless the Trustee shall have received from the Person entitled to receive the definitive Bearer Security a certificate substantially in the form approved in the Board Resolutions relating thereto and such delivery shall occur only outside the United States of America. Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of the same series authenticated and delivered hereunder. Section 305. Registration, Registration of Transfer and Exchange. The Company will keep, either at the office or agency designated and maintained by the Company for such purpose in the Borough of Manhattan, The City of New York, in accordance with the provisions of Section 1002, or at any of such other offices or agencies as may be designated and maintained in accordance with the provisions of Section 1002, a register or registers in which, subject to such reasonable regulations as it may prescribe, it will register, and will register the transfer of, Registered Securities of a series. Each such register is sometimes herein referred to as a "Security Register". Each Security Register shall be in written form in the English language or in any other form capable of being converted into such form within a reasonable time. At all normal business hours such Security Register shall be open for inspection by the Trustee and any Security Registrar other than the Trustee. -28- 41 Upon surrender for registration of transfer of any Security of any series at any such office or agency to be maintained for the purpose as provided in Section 1002, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series and of like tenor in any authorized denomination for a like aggregate principal amount and having the same interest rate, Maturity, repayment and redemption provisions. Bearer Securities (except for any temporary global Bearer Securities) or any Coupons appertaining thereto (except for Coupons attached to any temporary global Bearer Security) shall be transferable by delivery. At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series and of like tenor in other authorized denominations, in an equal aggregate principal amount and having the same interest rate, Maturity, repayment and redemption provisions. Registered Securities of any series to be exchanged shall be surrendered at any office or agency to be maintained by the Company for the purpose as provided in Section 1002, and the Company shall execute, and the Trustee shall authenticate and deliver, in exchange therefor the Registered Securities of the same series and having the same interest rate and Maturity which the Holder making the exchange shall be entitled to receive, bearing numbers or other distinguishing symbols not contemporaneously outstanding. Each Person designated by the Company pursuant to the provisions of Section 1002 as a Person authorized to register and register transfer of the Registered Security is sometimes herein referred to as a "Security Registrar". Unless otherwise specified as contemplated in Section 301, at the option of the Holder, Bearer Securities of such series may be exchanged for Registered Securities (if the Securities of such series are issuable in registered form) or Bearer Securities (if Bearer Securities of such series are issuable in more than one denomination and such exchanges are permitted by such series) of the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured Coupons and all matured Coupons in default. If the Holder of a Bearer Security is unable to produce any such unmatured Coupon or matured Coupon in default, such exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company and the Trustee in an amount equal to the face amount of such missing Coupon, or the surrender of such missing Coupon may be waived by the Company and the Trustee if there be furnished to them such -29- 42 security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing Coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 1002, interest represented by Coupons shall be payable only upon presentation and surrender of those Coupons at an office or agency located outside the United States of America. Notwithstanding the foregoing, in case any Bearer Security of any series is surrendered at any such office or agency in exchange for a Registered Security of the same series after the close of business at such office or agency on (i) any Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the Coupon relating to such Interest Payment Date or proposed date of payment, as the case may be (or, if such Coupon is so surrendered with such Bearer Security, such Coupon shall be returned to the Person so surrendering the Bearer Security), and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date of payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such Coupon, when due in accordance with the provisions of this Indenture. The Company will at all times designate one Person (who may be the Company and who need not be a Security Registrar) to act as repository of a master list of names and addresses of the Holders of the Registered Securities. The Corporate Trust Office of the Trustee shall act as such repository unless and until some other Person is, by written notice from the Company to such office or agency and each Security Registrar, designated by the Company to act as such. The Company shall cause each Security Registrar to furnish to such repository, on a current basis, such information as to all registrations of transfer and exchanges effected by such Security Registrar, as may be necessary to enable such repository to maintain the master list of Registered Holders on as current a basis as is practicable. No Person shall at any time be designated as or act as a Security Registrar unless such Person is at such time empowered under applicable law to act as such and duly registered to act as such under and to the extent required by applicable law and regulations. -30- 43 Every Registered Security presented for registration of transfer, exchange, redemption or payment shall (if so required by the Company or the Trustee) be duly endorsed by, or be accompanied by a written instrument of transfer or exchange in form satisfactory to the Company and the Trustee duly executed by, the Holder or his attorney duly authorized in writing. The Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any exchange or registration of transfer of Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any registration of transfer. No service charge shall be made for any such transaction. The Company shall not be required (1) to exchange or register a transfer of any Securities of any series for a period of 15 days next preceding the selection of Securities of that series to be redeemed, (2) to exchange or register a transfer of any Registered Securities selected, called or being called for redemption or surrendered for repayment in whole or in part except, in the case of any Security to be redeemed or repaid in part, the portion thereof not so to be redeemed or repaid, or (3) to exchange any Bearer Security so selected for redemption, except that such a Bearer Security may be exchanged for a Registered Security of that series and like tenor; provided, however, that such Registered Security shall be simultaneously surrendered for redemption. Notwithstanding the foregoing and except as otherwise specified or contemplated in Section 301, no Global Security shall be exchangeable pursuant to this Section 305 or Sections 304, 906, and 1107 for the Securities of, and no transfer of a Global Security of any series may be registered to, any Person other than the Depositary for such Security or its nominee unless (1) such Depositary (A) notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or (B) ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, (2) the Company executes and delivers to the Trustee a Company Order that such Global Security shall be so exchangeable and the transfer thereof so registerable, or (3) there shall have occurred and be continuing an Event of Default, or an event which after notice or lapse of time would be an Event of Default, with respect to the Securities evidenced by such Global Security. Upon the occurrence in respect of any Global Security of any series of any one or more of the conditions specified in clauses (1), (2) or (3) of the preceding sentence or such other conditions as may be specified as contemplated in Section 301 for such series, such as that the Securities of such series may be exchanged -31- 44 for Bearer Securities, such Global Security may be exchanged for Registered Securities in the names of, and the transfer of such Global Security may be registered to, such Persons (including Persons other than the Depositary with respect to such series and its nominees), as such Depositary shall direct. Notwithstanding any other provision of this Indenture, any Security authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, any Global Security shall also be a Global Security and shall bear the legend specified in Section 203 except for any Security authenticated and delivered in exchange for, or upon registration of transfer of, a Global Security pursuant to the preceding sentence. Section 306. Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any temporary or definitive Security or Coupon shall become mutilated or defaced or be destroyed, lost or stolen, in the absence of notice to the Company or the Trustee that such Security or Coupon has been acquired by a bona fide purchaser, the Company may in its discretion execute, and the Trustee shall authenticate and deliver, a new Registered Security, if such surrendered Security was a Registered Security, or a new Bearer Security with Coupons corresponding to the Coupons appertaining to the surrendered Security, if such surrendered Security was a Bearer Security, which shall be of the same series and of like tenor and aggregate principal amount, bearing a number or other distinguishing symbol not contemporaneously Outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of and substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substitute Security shall furnish to the Company and to the Trustee (and any agent of the Company or Trustee, if requested by the Company) such security or indemnity as may be required by them to indemnify and defend and to save each of them harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security, or of such Coupon appurtenant thereto, and of the ownership thereof. Upon the issuance of any substitute Security, 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. In case any Security that has matured or is about to mature or has been called for redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Company in its discretion may instead of issuing a sub- -32- 45 stitute Security pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated or defaced Security), if the applicant for such payment shall furnish to the Company and to the Trustee (and any agent of the Company or Trustee, if requested by the Company) such security or indemnity as any of them may require to indemnify and defend and to save each of them harmless, and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof. Every substituted Security (and every appurtenant Coupon, if any) of any series issued pursuant to the provisions of this Section by virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an 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 (but shall be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities of such series duly authenticated and delivered hereunder. All Securities shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender. Section 307. Payment of Interest; Interest Rights Preserved. Except as otherwise specified for a particular series pursuant to Section 301, interest on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Registered Security (or one or more Predecessor Securities) is registered in the Security Register at the close of business on the Record Date for such interest either (i) by check mailed to the address of such Person as referenced in the Security Register or (ii) by wire transfer to an account designated by such Person pursuant to an arrangement that is satisfactory to the Company and the Trustee. Unless otherwise provided pursuant to Section 301, the Company shall pay to the Trustee or the Paying Agent the aggregate amount of interest in immediately available funds by 10:00 A.M. New York City time on the Interest Payment Date. The Trustee shall not be held responsible or liable for any loss resulting from a failure of the federal funds -33- 46 wire system or any other occurrence beyond its control in connection with wire transfers made pursuant to this Section 307. Except as otherwise specified for a particular series pursuant to Section 301, (i) interest on any Bearer Securities shall be paid only against presentation and surrender of the Coupons for such interest installments as are evidenced thereby as they mature and (ii) the accreted amount, if any, with respect to Bearer Securities which constitute Original Issue Discount Securities shall be paid only against presentation and surrender of such Securities; in either case at the office of a Paying Agent located outside the United States of America, unless the Company shall have otherwise instructed the Trustee in writing, provided that the Company furnishes the Trustee with an Opinion of Counsel stating that any such instruction for payment in the United States of America does not cause any Bearer Security to be treated as a "registration-required obligation" under United States laws and regulations. The interest on any temporary Bearer Security shall be paid, as to any installment of interest evidenced by a Coupon attached thereto, only upon presentation and surrender of such Coupon and, as to other installments of interest, only upon presentation of such Security for notation thereon of the payment of such interest. If at the time a payment of principal of or interest on a Bearer Security or Coupon shall become due, the payment of the full amount so payable at the office or offices of all the Paying Agents outside the United States is illegal or effectively precluded because of the imposition of exchange controls or other similar restrictions on the payment of such amount in United States dollars, then the Company may instruct the Trustee in writing to make such payments at a Paying Agent located in the United States of America, provided that the Company furnishes the Trustee with an Opinion of Counsel stating that provision for such payment in the United States of America would not cause such Bearer Security to be treated as a "registration-required obligation" under United States laws and regulations. Any interest on any Registered Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below: (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respec- -34- 47 tive Predecessor Securities) are registered at the close of business on a special record date ("Special Record Date") for the payment of such Defaulted Interest which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Registered Securities of such series at its address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2). (2) The Company may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Registered Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. Subject to the foregoing provisions of this Section 307, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued -35- 48 and unpaid, and to accrue, which were carried by such other Security. Section 308. Persons Deemed Owners. The Company, the Trustee and any agent of the Company or the Trustee may deem and treat the Person in whose name any Registered Security shall be registered in the Security Register for such series as the absolute owner of such Registered Security (whether or not such Registered Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, any premium or interest on, such Registered Security and for all other purposes; and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by any notice to the contrary. The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of any Bearer Security and the bearer of any Coupon as the absolute owner of such Bearer Security or Coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Bearer Security or Coupon be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. All payments so made to any such Person or bearer, or upon his order, shall be valid and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Security. Section 309. Cancellation. All Securities and Coupons surrendered for the purpose of payment, redemption, conversion, registration of transfer or exchange, or for credit against any payment in respect of a sinking or analogous fund, if surrendered to the Company, any Security Registrar, any Paying Agent or any other agent of the Company or any agent of the Trustee, shall be delivered to the Trustee and promptly canceled by it or, if surrendered to the Trustee, shall be promptly canceled by it; and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee shall destroy canceled Securities and Coupons held by it and, in the case of canceled Securities, deliver a certificate of destruction to the Company. If the Company shall acquire any of the Securities, such acquisition shall not operate as a redemption or satisfaction of the -36- 49 indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation. Section 310. Computation of Interest. Except as otherwise specified as contemplated in Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months. Section 311. Securities Denominated in Foreign Currencies. For the purposes of calculating the principal amount of Securities of any series denominated in a Specified Currency for any purpose under this Indenture, the principal amount of such Securities at any time Outstanding shall be deemed to be that amount of United States dollars that could be obtained for such principal amount on the basis of a spot rate of exchange specified to the Trustee by the Company in an Officers' Certificate for such Specified Currency into United States dollars as of the date of any such calculation. Section 312. Compliance with Certain Laws and Regulations. If any Bearer Securities are to be issued in any series of Securities, the Company will use reasonable efforts to provide for arrangements and procedures designed pursuant to then applicable laws and regulations, if any, to ensure that Bearer Securities are sold or resold, exchanged, transferred and paid only in compliance with such laws and regulations and without adverse consequences to the Company or the Trustee. ARTICLE FOUR Satisfaction and Discharge Section 401. Satisfaction and Discharge of Indenture. This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of conversion or registration of transfer or exchange of Securities herein expressly provided for), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when (1) either (A) all Securities theretofore authenticated and delivered and all Coupons appertaining thereto (other -37- 50 than (i) Securities and Coupons which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306, (ii) Securities and Coupons for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 1003, (iii) Coupons appertaining to Bearer Securities surrendered in exchange for Registered Securities and maturing after such exchange, surrender of which is not required or has been waived as provided in Section 305, and (iv) Coupons appertaining to Bearer Securities called for redemption and maturing after the relevant Redemption Date, surrender of which has been waived as provided in Section 1106) have been delivered to the Trustee for cancellation; or (B) all such Securities, and, in the case of (i) and (ii) below, any Coupons appertaining thereto, not theretofore delivered to the Trustee for cancellation (i) have become due and payable, or (ii) will become due and payable at their Stated Maturity within one year, or (iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; (2) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and (3) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. -38- 51 Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607, the obligations of the Trustee to any Authenticating Agent under Section 614 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section 401, the obligations of the Trustee under Sections 305, 306, 402 and 1002 and the last paragraph of Section 1003 shall survive. Section 402. Application of Trust Money. Subject to provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) or Depositary as the Trustee may determine, to the Holders of the particular Securities of such series for the payment or redemption of which such money has been deposited with the Trustee, of all sums due and to become due thereon for principal and any premium and interest. ARTICLE FIVE Remedies Section 501. Events of Default. "Event of Default", with respect to Securities of a particular series wherever used herein, means any one of the following events and such other events as may be established with respect to the Securities of such series as contemplated in Section 301, continued for the period of time, if any, and after the giving of notice, if any, designated in this Indenture or as may be established with respect to such Securities as contemplated in Section 301, as the case may be, unless such event is either inapplicable or is specifically deleted or modified in, or pursuant to, the applicable Board Resolution or in the supplemental indenture under which such series of Securities is issued, as the case may be, as contemplated in Section 301: (1) default in the payment of the principal of, or any premium on, any of the Securities of such series as and when the same shall become due and payable either at Stated Maturity, upon redemption, by declaration or otherwise; or (2) default in the payment of any installment of interest, if any, upon any of the Securities of such -39- 52 series as and when it shall become due and payable, and continuance of such default for a period of 30 days; or (3) default in the payment of any sinking fund payment, when and as due and payable by the terms of the Securities of such series; or (4) default in the performance, or breach, of any covenant or agreement of the Company in this Indenture or the Securities of such series (other than a covenant or agreement a default in the performance of which or a breach of which is elsewhere in this Section 501 specifically dealt with or which has expressly been included in this Indenture and designated as being solely for the benefit of series of Securities other than such series), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of such series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (5) a default under any bond, debenture, note or other evidence of indebtedness for money borrowed in excess of $25,000,000 of the Company or any Significant Subsidiary (including a default with respect to Securities of any series other than such series) or under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any such indebtedness for money borrowed by the Company or any Significant Subsidiary (including this Indenture), whether such indebtedness now exists or shall hereafter be created, which default shall have resulted in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such involuntary acceleration having been rescinded or annulled within a period of 30 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of such series a written notice specifying such default and requiring the Company to cause such acceleration to be rescinded or annulled and stating that such notice is a "Notice of Default" hereunder;provided, however, that, if such default shall be remedied or cured by the Company or waived by the holders of such indebtedness, then the Event of Default hereunder by reason thereof shall be deemed likewise to have been thereupon -40- 53 remedied, cured or waived without any action on the part of the Trustee or any of the Holders; or (6) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Company or for all or substantially all of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 90 consecutive days; or (7) the Company shall commence a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Company or for all or substantially all of its property, or make any general assignment for the benefit of creditors; or (8) any other Event of Default provided with respect to Securities of such series. Section 502. 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, then, and in each and every such case, unless the principal of all of the Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such series, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the entire principal amount (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal as may be specified in the terms of such series) of all of the Securities of such series and any premium and interest accrued thereon to be due and payable immediately, and upon any such declaration such principal amount (or specified amount) and any premium and interest accrued thereon shall become immediately due and payable. -41- 54 The foregoing provisions, however, are subject to the condition that if, at any time after the principal (or, if the Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of the Securities of any series shall have been so declared due and payable, and before any judgment or decree for the payment of money due shall have been obtained or entered as hereinafter provided, (1) the Company shall pay or shall deposit with the Trustee a sum sufficient to pay the premium and all matured installments of interest, if any, upon all the Securities of such series and the principal of any and all Securities of such series which shall have become due otherwise than by such declaration of acceleration (with premium and interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue premium and installments of interest, if any, at the Overdue Rate applicable to such series to the date of such payment or deposit), and all amounts payable to the Trustee pursuant to Section 607, and (2) all Events of Default under the Indenture with respect to such series of Securities other than the nonpayment of the principal of such Securities which shall have become due by such declaration of acceleration, shall have been cured, waived or otherwise remedied as provided in Section 513 or provision shall have been made therefor to the satisfaction of the Trustee, then and in every such case the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of such series, by written notice to the Company and to the Trustee, may rescind and annul such declaration and its consequences with respect to such series, but no such rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together -42- 55 with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities. Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if (1) default is made in the payment of any installment of interest on any of the Securities of any series as and when such interest becomes due and payable, and such default continues for a period of 30 days, or (2) a default is made in the payment of the principal of, and any premium on, any of the Securities of any series as and when the same becomes due and payable, whether upon Stated Maturity of the Securities of such series or upon redemption or by declaration or otherwise, or (3) default is made in the making or satisfaction of any sinking fund payment or analogous obligation when the same becomes due by the terms of the Securities of any series, then the Company will, upon demand of the Trustee, pay to the Trustee for the benefit of the Holders of the Securities of such series the whole amount then due and payable on all Securities of such series for principal and any premium and interest as the case may be (with interest to the date of such payment upon the overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue premium and installments of interest, if any, at the Overdue Rate applicable to Securities of such series); and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and any further amounts payable to the Trustee pursuant to Section 607. Until such demand is made by the Trustee, the Company may pay the principal of and any premium and interest on the Securities of any series to the registered Holders, whether or not the principal of and any premium and interest on the Securities of such series be overdue. In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or -43- 56 final decree, and may enforce any such judgment or final decree against the Company or other obligor upon such Securities and collect in the manner provided by law out of the property of the Company or other obligor upon such Securities, wherever situated, the moneys adjudged or decreed to be payable. If an Event of Default with respect to Securities of any Series has occurred, has not been waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law. Section 504. Trustee May File Proofs of Claim. In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor upon the Securities of any series under Title 11 of the United States Code or any other similar applicable Federal or State law, or in case a receiver, trustee in bankruptcy or similar official shall have been appointed for the property of the Company or such other obligor, or in case of any other similar judicial proceedings relative to the Company or other obligor upon the Securities of any series, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of any Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise: (1) to file and prove a claim or claims for the whole amount of principal (or, if the Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be due and payable with respect to such series pursuant to a declaration in accordance with Section 502) and any premium and interest owing and unpaid in respect of the Securities of any series, and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for any amounts payable to the Trustee pursuant to Section 607) and of the Holders allowed in any judicial proceedings -44- 57 relating to the Company or other obligor upon the Securities of any series, or to the creditors or property of the Company or such other obligor; (2) unless prohibited by applicable law and regulations, to vote on behalf of the Holders of the Securities of any series in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or of a person performing similar functions in comparable proceedings; and (3) to collect and receive any money or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Holders and of the Trustee on their behalf (after deduction of costs and expenses of collection, and any further amounts payable to the Trustee pursuant to Section 607 and incurred by it); and any trustee in bankruptcy, receiver or other similar official is hereby authorized by each of the Holders to make payments to the Trustee and, in the event that the Trustee shall consent to the making of payments directly to the Holders, to pay to the Trustee costs and expenses of collection and any further amounts payable to the Trustee pursuant to Section 607 and incurred by it. No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Holder any plan or reorganization, arrangement, adjustment or composition affecting the Securities of any series 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, except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar person. Section 505. Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture, or under the Securities of any series, may be prosecuted and enforced by the Trustee without the possession of any of the Securities of such series 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. -45- 58 Section 506. Application of Moneys Collected by Trustee. 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 the case of distribution of such money on account of principal or any premium or interest, upon presentation of the Securities or Coupons in respect of which money has been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities in reduced principal amounts in exchange for the presented Securities of like series and tenor if only partially paid, or upon surrender thereof if fully paid: FIRST: To the payment of amounts due to the Trustee under Section 607; SECOND: In case the principal of the Outstanding Securities in respect of which money has been collected shall not have become and be then due and payable, to the payment of interest, if any, on the Securities in default in the order of the Maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee and to the extent permitted by applicable law) upon the overdue installments of interest at the Overdue Rate applicable to such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference; provided, however, that such payments shall be made subject to the provisions of Article Fifteen hereunder, if applicable; THIRD: In case the principal of the Outstanding Securities in respect of which money has been collected shall have become and shall be then due and payable by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon such Securities for principal and, any premium and interest, with interest upon the overdue principal, and (to the extent that such interest has been collected by the Trustee and to the extent permitted by applicable law) upon overdue premium and installments of interest, if any, at the Overdue Rate applicable to such Securities; and in case such money shall be insufficient to pay in full the whole amount so due and unpaid upon such Securities, then to the payment of such principal and any premium and interest, without preference or priority of principal over premium and interest, if any, or of interest, if any, over principal and premium, if any, or of premium, if any, over principal and interest, if any, or of any installment of interest, if any, over any other installment of interest, if any, or of any Security over any other Security, ratably to the aggregate of such principal and accrued and unpaid premium and interest, if any; provided, however, that such payments shall be made -46- 59 subject to the provisions of Article Fifteen hereunder, if applicable; and FOURTH: To the payment of the remainder, if any, to the Company. Section 507. Limitation on Suits. No Holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Indenture, or for the appointment of a trustee in bankruptcy, receiver or other similar official or for any other remedy hereunder, unless (1) such Holder has previously given written notice to the Trustee of default with respect to Securities of such series and of the continuance thereof, as hereinbefore provided; (2) the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such series shall have made written request to the Trustee to institute such action, suit or proceedings in its own name as Trustee hereunder; (3) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has neglected or refused to institute any such action, suit or proceeding; and (5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period pursuant to Section 512; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security with every other taker and Holder and the Trustee, that no one or more Holders of any Securities shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder of Securities, or to obtain or to seek to obtain priority or preference over any other Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities. For the protection and enforcement of the provisions of this Section, each Holder and the Trustee -47- 60 shall be entitled to such relief as can be given either at law or in equity. Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 307) any interest on such Security on the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder. Section 509. Restoration of Rights and Remedies. In case the Trustee or any Holder shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee and the Holders shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company, the Trustee and the Holders shall continue as though no such proceedings had been taken. Section 510. Rights and Remedies Cumulative. Except as provided in Section 507 and except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. Section 511. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder to exercise any right, power or remedy accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right, power or remedy or shall be construed to be a waiver of any such Event of Default or an -48- 61 acquiescence therein. Subject to Section 507, every power and remedy given by this Indenture or by law to the Trustee or to the Holders of any or all series, as the case may be, may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders of such series or all series, as the case may be. Section 512. Control by Holders. The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee by this Indenture with respect to Securities of such series; provided, however, that (1) such direction shall not be in conflict with any rule of law or with this Indenture, and (2) the Trustee (subject to the requirements of the Trust Indenture Act) shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken or if the Trustee shall determine that the action or proceedings so directed would involve the Trustee in personal liability or be unduly prejudicial to the Holders not joining therein. Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any action deemed proper by the Trustee and which is not inconsistent with such direction or directions by Holders. Section 513. Waiver of Past Defaults. Prior to the declaration of the acceleration of the Maturity of the Securities of any particular series, the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default or Event of Default with respect to such series and its consequences, except a default not theretofore cured (1) in the payment of the principal of or any premium or interest on any Security of such series, or (2) in respect of a covenant or provision hereof which cannot be modified or amended without the consent -49- 62 of the Holder of each Outstanding Security of such series affected as provided in Section 902. In the case of any such waiver, the Company, the Trustee and the Holders of the Securities of each series affected shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Upon any such waiver, such default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured, and not to have occurred for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. Section 514. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit and may assess costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided, however, that neither this Section 514 nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company. Section 515. Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. -50- 63 ARTICLE SIX The Trustee Section 601. Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default with respect to any series of Securities, (1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with respect to the Securities of such series, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (2) in the absence of bad faith on its part, the Trustee may, with respect to Securities of such series, conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture. (b) In case an Event of Default with respect to any series of Securities has occurred and is continuing, the Trustee shall exercise with respect to the Securities of such series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. (c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that (1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section; (2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; (3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it -51- 64 in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and (4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it (d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. Section 602. Notice of Defaults. The Trustee shall transmit notices of default to the Holders in accordance with section 315(b) and related provisions of the Trust Indenture Act. For the purpose of this Section 602, the term "default" means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series. Section 603. Certain Rights of the Trustee. Subject to the requirements of the Trust Indenture Act: (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officers' Certificate or any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Company Order or Company Request (unless other evidence in respect thereof be herein specifically prescribed) and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; -52- 65 (c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate; (d) the Trustee may consult with counsel and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in reliance thereon; (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request, order or direction; (f) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document unless requested in writing so to do by the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series affected; but the Trustee, in its discretion may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys not regularly in its employ and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder; and (h) the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it -53- 66 to be authorized or within the discretion, rights or powers conferred upon it by this Indenture. Section 604. Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this Indenture or of the Securities, provided that the Trustee shall not be relieved of its duty to authenticate Securities only as authorized by this Indenture. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company of any of the Securities or the proceeds thereof. Section 605. May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not the Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent and, subject to the requirements of the Trust Indenture Act, may otherwise deal with the Company and receive, collect, hold and retain collections from the Company with the same rights it would have if it were not the Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent. Section 606. Money Held in Trust. Subject to the provisions of Section 1003, all money received by the Trustee or any Paying Agent, all money and Government Obligations deposited with the Trustee pursuant to Section 1302 or Section 1303 and all money received by the Trustee in respect of Government Obligations deposited with the Trustee pursuant to Section l302 or Section 1303, shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by mandatory provisions of law. Neither the Trustee nor any Paying Agent shall be under any liability for interest on any money received by it hereunder except as otherwise agreed by the Company. So long as no Event of Default shall have occurred and be continuing, all interest allowed on any such money shall be paid from time to time in accordance with a Company Order. -54- 67 Section 607. Compensation and Reimbursement. The Company covenants and agrees (1) to pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for all services rendered by it hereunder (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and (3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability, or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this Indenture or the trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligations of the Company under this Section 607 to compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture. Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501(6) or (7), the expenses and the compensation for the services are intended to constitute expenses of administration under any bankruptcy law. Section 608. Right to Rely on Officers' Certificate. Subject to the requirements of the Trust Indenture Act, whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable -55- 68 that a matter be proved or established prior to taking or suffering or omitting any action to be taken hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof. Section 609. Eligibility. The Trustee for each series of Securities hereunder shall at all times be a Person organized and doing business under the laws of the United States of America or of any State or the District of Columbia, having a combined capital and surplus of at least $50,000,000, and eligible under the provisions of the Trust Indenture Act. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person at any time shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in this Article. Section 610. Resignation and Removal; Appointment of Successor. (a) Any resignation or removal of the Trustee with respect to any series and any appointment of a successor Trustee with respect to such series pursuant to any of the provisions of this Section 610 shall become effective upon acceptance of appointment by the successor Trustee as provided in Section 611. (b) The Trustee may resign at any time with respect to one or more or all series of Securities by giving 90 days written notice of resignation to the Company. Upon receiving such notice of resignation, the Company shall promptly appoint a successor Trustee with respect to the applicable series by written instrument in duplicate, executed by authority of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor Trustee. If no successor Trustee shall have been so appointed with respect to any series and have accepted appointment within 30 days after the -56- 69 mailing of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee, or any Holder who has been a bona fide Holder of a Security of the applicable series for at least six months may, subject to the requirements of the Trust Indenture Act, on behalf of itself and all others similarly situated, petition any such court for the appointment of a successor Trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor Trustee. (c) The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series may at any time remove the Trustee with respect to Securities of such series and appoint a successor Trustee with respect to the Securities of such series by delivering to the Trustee so removed, to the successor Trustee so appointed and to the Company the evidence provided for in Section 104 of the action in that regard taken by the Holders. (d) In case at any time any of the following shall occur: (1) the Trustee shall cease to be eligible in accordance with the provisions of Section 609 with respect to any series of Securities and shall fail to resign after written request therefor by the Company or by any such Holder; or (2) the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation; then, in any such case, (i) the Company may remove the Trustee with respect to the applicable series of Securities (or all series, if required) and appoint a successor Trustee for such series by written instrument, in duplicate, executed by authority of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor Trustee, or (ii) subject to the requirements of the Trust Indenture Act, any Holder who has been a bona fide Holder of a Security of such series for at least six months may on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem -57- 70 proper and prescribe, remove the Trustee and appoint a successor Trustee with respect to such series. (e) If the Trustee shall resign, be removed or become incapable of acting with respect to any series of Securities, or if a vacancy shall occur in the office of the Trustee with respect to any series of Securities for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Trustee for that series of Securities. If, within one year after such resignation, removal or incapacity, or the occurrence of such vacancy, a successor Trustee with respect to such series of Securities shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to such series and supersede the successor Trustee appointed by the Company with respect to such series. If no successor Trustee with respect to such series shall have been so appointed by the Company or the Holders of such series and accepted appointment in the manner hereinafter provided, subject to Section 514, any Holder who has been a bona fide Holder of a Security of that series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series. Section 611. Acceptance of Appointment by Successor. Any successor Trustee appointed as provided in Section 610 shall execute, acknowledge and deliver to the Company and to its predecessor Trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Trustee with respect to all or any applicable series shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations with respect to such series of its predecessor Trustee hereunder, with like effect as if originally named as Trustee for such series hereunder; but, nevertheless, on the written request of the Company or of the successor Trustee, upon payment (or due provision therefor) of any amounts then due it pursuant to Section 607, the predecessor Trustee ceasing to act shall, subject to Section 1003, pay over to the successor Trustee all money at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor Trustee all such rights, powers, duties and obligations. Upon request of any such successor Trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting -58- 71 in and confirming to such successor Trustee all such rights and powers. Any Trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such Trustee to secure any amounts then due it pursuant to the provisions of Section 607. If a successor Trustee is appointed with respect to the Securities of one or more (but not all) series, the Company, the predecessor Trustee and each successor Trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee. No successor Trustee with respect to any series of Securities shall accept appointment as provided in this Section unless at the time of such acceptance such successor Trustee shall, with respect to such series, be qualified under the requirements of the Trust Indenture Act and eligible under the provisions of Section 609. Upon acceptance of appointment by any successor Trustee as provided in this Section 611, the Company shall give notice thereof to the Holders of Securities of any series for which such successor Trustee is acting as Trustee in the manner provided for notices to the Holders of Securities in Section 106. If the Company fails to give such notice within ten days after acceptance of appointment by the successor Trustee, the successor Trustee shall cause such notice to be given at the expense of the Company. Section 612. Merger, Conversion, Consolidation or Succession to Business. Any Person into which the Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided -59- 72 that such Person shall be qualified under the requirements of the Trust Indenture Act and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture any of the Securities of any series shall have been authenticated but not delivered, any such successor to the Trustee by merger, conversion or consolidation may adopt the certificate of authentication of any predecessor Trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities of any series shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of such successor to the Trustee or, if such successor to the Trustee is a successor by merger, conversion or consolidation, in the name of any predecessor hereunder; provided, however, that such successor shall use the predecessor's name only in such circumstances set forth in this Section and in all such cases such certificate shall have the full force which it is anywhere in the Securities of such series or in this Indenture provided that the certificate of the Trustee shall have. Section 613. Preferential Collection of Claims Against Company. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor). Section 614. Appointment of Authenticating Agent. The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities or such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an -60- 73 Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of such supervising or examining authority, then for the purposes of this Section 614, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 614, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section 614. Any Person into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any Person succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such Person shall be otherwise eligible under this Section 614, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent. An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 614, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve in the manner set forth in Section 106. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 614. -61- 74 The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section 614, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 607. If an appointment with respect to one or more series is made pursuant to this Section 614, the Securities of such series may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternative certificate of authentication in the following form: This is one of the Securities of the series designated therein and referred to in the within-mentioned Indenture. ----------------------------, As Trustee By --------------------------, As Authenticating Agent By --------------------------, Authorized Officer ARTICLE SEVEN Holders' List and Reports by Trustee and Company Section 701. Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee: (a) semi-annually, not later than 15 days after each Record Date for the Securities of any series (and on dates as specified as contemplated in Section 301 for any series of Original Issue Discount Securities which by their terms bear interest only after Maturity), a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of the Securities of such series as of each such Record Date (and as of dates as specified as contemplated in Section 301 of this Indenture), and (b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the -62- 75 Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such is furnished; provided, however, that if and so long as the Trustee shall be the Security Registrar for Securities of a series, no such list need be furnished with respect to such series of Securities. Section 702. Preservation of Information; Communications to Holders. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Registered Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished. (b) The rights of the Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act. (c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act. Section 703. Reports by Trustee. (a) The Trustee shall transmit to the Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. (b) A copy of each such report shall, at the time of such transmission to the Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange. Section 704. Reports by Company. The Company shall file with the Trustee and the Commission, and transmit to the Holders, such information, -63- 76 documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Trust Indenture Act. ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease Section 801. Company May Consolidate, Etc., Only on Certain Terms. Nothing contained in this Indenture or in any of the Securities shall prevent any consolidation or merger of the Company with or into any other Person (whether or not affiliated with the Company), or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties, or shall prevent any conveyance, transfer or lease of all or substantially all the property or assets of the Company, to any other Person (whether or not affiliated with the Company) authorized to acquire and operate the same; provided, however, and the Company hereby covenants and agrees, that upon any such consolidation, merger, transfer, conveyance or lease: (1) the due and punctual payment of the principal of and any premium and interest on all of the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed or observed by the Company, shall be expressly assumed, by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by the Person (if other than the Company) formed by such consolidation, or into which the Company shall have been merged, or by the Person which shall have acquired or leased such property or assets and such person shall be organized and existing under the laws of the United States of America or of any State or the District of Columbia; (2) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing;provided, however, that a transaction will be deemed to be in violation of this clause (2) only with respect to those series of Securities whereby such Event of Default or such event shall have occurred and be continuing; and -64- 77 (3) the Trustee, subject to the requirements of the Trust Indenture Act and Section 603, shall receive an Opinion of Counsel and Officers' Certificate to the effect that such consolidation, merger, conveyance, transfer or lease and any such assumption complies with the provisions of this Article and that all conditions precedent herein provided for relating to such transaction have been complied with. Section 802. Successor Substituted. Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of all or substantially all the property or assets of the Company in accordance with Section 801, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities. In case of any such consolidation, merger, conveyance, transfer or lease, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate. ARTICLE NINE Supplemental Indentures Section 901. Supplemental Indentures Without Consent of Holders. Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes: (1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company contained herein and in the Securities; or (2) to add to the covenants of the Company for the benefit of the Holders of all or any series of Secur- -65- 78 ities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or (3) to add any additional Events of Default and to provide with respect thereto for any particular periods of grace after default (which may be shorter or longer than that allowed in the case of other defaults) or for immediate enforcement upon such default or for any limitation of the remedies available to the Trustee upon such default; or (4) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities; provided, however, that any such addition, change or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder of any such Security with respect to such provision or (ii) shall become effective only when there is no such Security Outstanding; or (5) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities of one or more series any property or assets; or (6) to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or (7) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611; or (8) to cure any ambiguity, to correct or supplement any provision herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture; or to change or eliminate any provision or to make any other provisions with respect to matters or questions arising under this Indenture or under any supplemental indenture as the Company may deem necessary or desirable;provided, however, that such action shall not adversely affect the interests of the Holders of the Outstanding Securities of any series. -66- 79 Any supplemental indenture authorized by the provisions of this Section may be executed by the Company and the Trustee without the consent of the Holders of the Outstanding Securities of any Series, notwithstanding any of the provisions of Section 902. Section 902. Supplemental Indentures with Consent of Holders. With the consent of the Holders of not less than 66-2/3% in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture (each such series voting as a single class), by act of such Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights and obligations of the Company and the rights of the Holders of the Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby, (1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof, or reduce any premium thereof or change the time of payment of any premium thereon, or reduce the rate or change the time of payment of interest thereon, if any, or reduce any amount payable on redemption or reduce the Overdue Rate thereof or make the principal thereof or any premium or interest thereon, payable at any place of payment or in any coin or currency other than as provided in the Security or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon an acceleration of the Maturity thereof pursuant to Section 502 or the amount thereof provable in bankruptcy pursuant to Section 504, or impair, if the Securities provide therefor, any right of repayment at the option of the Holder, or impair the right to institute a suit for the enforcement of any payment on or with respect to any Security pursuant to Section 507; (2) reduce the aforesaid percentage of Outstanding Securities the consent of the Holders of which is required for any such supplemental indenture; or (3) alter or impair the right of any Holder to convert Securities of any series, the terms of which -67- 80 provide for conversion, at the rate and upon the terms provided in the Indenture. A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series. The preceding sentence shall not, however, raise any inference as to whether or not a particular series is affected by any supplemental indenture not referred to in such sentence. It shall not be necessary for the consent of the Holders under this Section 902 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section 902, the Company shall give notice thereof to the Holders of Securities of each series affected thereby in the manner provided for notices to the Holders of Securities in Section 106, setting forth in general terms the substance of such supplemental indenture. Any failure of the Company to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture. Section 903. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. Section 904. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties -68- 81 and immunities under this Indenture of the Trustee, the Company and the Holders of Securities of each series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and any such supplemental indenture shall form a part of this Indenture for all purposes and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. Section 905. Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as in effect at the date such supplemental indenture is executed. Section 906. Reference in Securities to Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may bear a notation in form approved by the Trustee for such series as to any matter provided for by such supplemental indenture. If the Company or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company, authenticated and delivered by the Trustee in exchange for the Outstanding Securities of such series. ARTICLE TEN Covenants Section 1001. Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay or cause to be paid the principal of, and any premium and interest on, the Securities of that series in accordance with the terms of the Securities and this Indenture. Section 1002. Maintenance of Office or Agency. The Company will designate and maintain in the Borough of Manhattan, The City of New York, for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange, where notices and demands to or upon -69- 82 the Company in respect of the Securities of that series and this Indenture may be served and where Securities of each series that is convertible may be presented for conversion. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office, 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 other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in The City of New York for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. Section 1003. Money for Securities Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal or any premium or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act. Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of and any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal and any premium or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act. The Company will cause each Paying Agent to execute and deliver to the Trustee an instrument in which such Paying -70- 83 Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) hold all sums held by it for the payment of the principal of and any premium or interest on the Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided; (2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of the principal of or any premium or interest on the Securities of that series; and (3) at any time during the continuance of any such default referred to in clause (2) above, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent. The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money. Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of and any premium or interest on any Security of any series and remaining unclaimed for two years after such principal and any premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper in The City of New York or other place of payment, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such -71- 84 publication, any unclaimed balance of such money then remaining will be repaid to the Company. Section 1004. Limitation on Liens. The Company will not itself, and will not permit any Subsidiary to, incur, issue, assume or guarantee any notes, bonds, debentures or other similar evidences of indebtedness for money borrowed (notes, bonds, debentures or other similar evidences of indebtedness for money borrowed being hereinafter in this Article called "Debt"), secured after the date hereof by pledge of, or mortgage or other lien on, any Principal Property of the Company or any Significant Subsidiary, or any shares of stock or Debt of any Significant Subsidiary (pledges, mortgages and other liens being hereinafter in this Article called "Mortgage" or "Mortgages"), without effectively providing that the Securities of all series (together with, if the Company shall so determine, any other Debt of the Company or such Significant Subsidiary then existing or thereafter created which is not subordinate to the Securities) shall be secured equally and ratably with (or, at the option of the Company, prior to) such secured Debt, so long as such secured Debt shall be so secured, unless after giving effect thereto, the aggregate principal amount of all such secured Debt then outstanding which would otherwise be prohibited, plus all Attributable Debt of the Company and its Significant Subsidiaries in respect of sale and leaseback transactions (as defined in Section 1005) occurring after the date hereof which would otherwise be prohibited by Section 1005 would not exceed 10% of Consolidated Net Tangible Assets; provided, however, that this Section 1004 shall not apply to, and there shall be excluded from secured Debt in any computation under this Section 1004, Debt secured by: (1) Mortgages on property of, or on any shares of stock or Debt of, any corporation existing at the time such corporation becomes a Significant Subsidiary; (2) Mortgages in favor of the Company or any Significant Subsidiary; (3) Mortgages in favor of the United States of America or any State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favor of any other country, or any political subdivision thereof, to secure partial, progress, advance or other payments pursuant to any contract or statute, or Mortgages for taxes, assessments or governmental charges or levies in each case (i) not then due and delinquent or (ii) the validity of which is being contested in good -72- 85 faith by appropriate proceedings, and materialmen's, mechanics', carriers', workmen's, repairmen's, landlord's or other like Mortgages, or deposits to obtain the release of such Mortgages; (4) Mortgages on property, shares of stock or Debt existing at the time of acquisition thereof (including acquisition through merger or consolidation) or to secure the payment of all or any part of the purchase price or construction cost thereof or to secure any Debt incurred prior to, at the time of, or within 180 days after, the acquisition of such property or shares or Debt or the completion of any such construction for the purpose of financing all or any part of the purchase price or construction cost thereof, provided that any such Mortgage shall only extend to the property acquired or constructed or property on which the acquired or constructed property is situated; (5) Mortgages securing obligations issued by a State, territory or possession of the United States of America, or any political subdivision of any of the foregoing, to finance the acquisition or construction of property, and on which the interest is not, in the opinion of tax counsel of recognized standing or in accordance with a ruling issued by the Internal Revenue Service, includible in gross income of the holder by reason of Section 103(a) of the Internal Revenue Code (or any successor to such provision) as in effect at the time of the issuance of such obligations, including, without limitation, Debt related to the financing of pollution control or other equipment or facilities financed by State or local government units; (6) Mortgages created in connection with a project financed, or assets acquired, with, and created to secure, indebtedness or lease payment obligations substantially related to (i) the acquisition of assets not currently owned by the Company or any of its Significant Subsidiaries or (ii) the financing of the construction or improvement of equipment, mines or facilities involving the development of properties of the Company or any of its Significant Subsidiaries, as to which the obligee with respect to such indebtedness or obligation has no recourse to the general corporate funds or the assets, in general, of the Company or any of its Significant Subsidiaries (such indebtedness or lease payment obligations being hereinafter in this Article called "Nonrecourse Obligations"); (7) Production payments or other related rights of others to the output of mines, refineries, smelters, -73- 86 concentrators or production facilities, including project financings, with respect to any property or assets acquired, constructed or improved by the Company or a Subsidiary with the proceeds of such project financings or Mortgages to secure payment of workmen's compensation or to secure performance in connection with tenders, leases of real property, bids or contracts or to secure (or in lieu of) surety or appeal bonds and Mortgages made in the ordinary course of business for similar purposes; and (8) Any extension, renewal, refunding or replacement (or successive extensions, renewals, refundings or replacements), as a whole or in part, of any Mortgage referred to in the foregoing clauses (1) to (7), inclusive;provided, however, that (i) such extension, renewal, refunding or replacement Mortgage shall be limited to all or a part of the same property, shares of stock or Debt that secured the Mortgage extended, renewed, refunded or replaced (plus improvements on such property) and (ii) the Debt secured by such Mortgage at such time is not increased. Section 1005. Limitation on Sales and Leasebacks. The Company will not itself, and will not permit any Significant Subsidiary to, enter into any arrangement with any bank, insurance company or other lender or investor (not including the Company or any Significant Subsidiary) or to which any such lender or investor is a party, providing for the leasing by the Company or any such Significant Subsidiary of any Principal Property which has been or is to be sold or transferred by the Company or such Significant Subsidiary to such lender or investor or to any Person to whom funds have been or are to be advanced by such lender or investor (herein referred to as a "sale and leaseback transaction") unless, after giving effect thereto, the aggregate amount of all Attributable Debt with respect to all such transactions occurring after the date hereof and existing at such time plus all secured Debt then outstanding of the Company and its Significant Subsidiaries incurred after the date hereof which would otherwise be prohibited by Section 1004 would not exceed 10% of Consolidated Net Tangible Assets. This covenant shall not apply to, and there shall be excluded from Attributable Debt in any computation under this Section 1005, Attributable Debt with respect to any sale and leaseback transaction if: (1) the lease in such sale and leaseback transaction is for a period, including renewals, of not in excess of three years, or -74- 87 (2) such sale and leaseback transaction is entered into prior to, at the time of, or within 180 days after the later of the acquisition of the Principal Property to which such sale and leaseback transaction relates or the completion of construction thereon, or (3) the lease in such sale and leaseback transaction secures or relates to obligations issued by a State, territory or possession of the United States of America, or any political subdivision of any of the foregoing, to finance the acquisition or construction of property, and on which the interest is not, in the opinion of tax counsel of recognized standing or in accordance with a ruling issued by the Internal Revenue Service, includible in gross income of the holder by reason of Section 103(a) of the Internal Revenue Code (or any successor to such provision) as in effect at the time of the issuance of such obligations, including, without limitation, Debt related to the financing of pollution control or other equipment or facilities financed by State or local government units, or (4) such sale and leaseback transaction is entered into between the Company and a Significant Subsidiary or between Significant Subsidiaries, or (5) such sale and leaseback transaction is created in connection with a project financed, or assets acquired, with, and such obligation constitutes, a Nonrecourse Obligation, or (6) the Company or a Significant Subsidiary, within 180 days after the sale or transfer shall have been made by the Company or by any such Significant Subsidiary, applies an amount not less than the greater of (i) the net proceeds of the sale of the Principal Property sold and leased back pursuant to such arrangement or (ii) the fair market value of the Principal Property so sold and leased back at the time of entering into such arrangement (as determined by any two of the following officers of the Company: the Chairman of the Board of Directors, the President, any Vice President, the Treasurer and the Controller) to (x) the purchase of property, facilities or equipment (other than the property, facilities or equipment involved in such sale) which will constitute Principal Property or (y) the retirement of Funded Debt of the Company or any Significant Subsidiary;provided, however, that the amount to be applied to the retirement of Funded Debt of the Company or any Significant Subsidiary shall be reduced by (i) the principal amount of any Funded Debt (including the Securities of any series) of the Company -75- 88 or any Significant Subsidiary (or, if the Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be due and payable with respect to such series pursuant to a declaration in accordance with Section 502), delivered within 180 days after such sale to the Trustee or other applicable trustee for retirement and cancellation, and (ii) the principal amount of Funded Debt, other than any Funded Debt referred to in the immediately preceding clause (i) of this proviso, voluntarily retired by the Company or a Significant Subsidiary within 180 days after such sale; andprovided, further, that, notwithstanding the foregoing, no retirement referred to in this clause (y) may be effected by payment at Maturity or pursuant to any mandatory sinking fund payment or any mandatory redemption provision. Section 1006. Certificate of Compliance. The Company shall deliver a certificate of compliance of the Company to the Trustee on or before April 30 of each year pursuant to section 314(a)(4) of the Trust Indenture Act. Section 1007. Waiver of Certain Covenants. The Company may omit in any particular instance to comply with any term, provision or condition set forth in Sections 1004 and 1005 with respect to the Securities of any series if before the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of such series shall, by the act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect. ARTICLE ELEVEN Redemption of Securities Section 1101. Applicability of Article. Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise -76- 89 specified as contemplated in Section 301 for Securities of any series) in accordance with this Article. Section 1102. Election to Redeem; Notice to Trustee. The election of the Company to redeem any Securities shall be evidenced by a Board Resolution. In case of the redemption at the election of the Company of the Securities of any series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed at the Redemption Price and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers' Certificate evidencing compliance with such restriction. Section 1103. Selection by Trustee of Securities to Be Redeemed. If less than all the Securities of any series are to be redeemed (unless all of the Securities of such series and of a specified tenor are to be redeemed), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series. If less than all of the Securities of such series and of a specified tenor are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence. The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed. For the purpose of such selection in case of redemption of less than all of the Securities of any series, -77- 90 the Trustee and the Company shall have the option to treat as Outstanding Securities any Securities of such series which are surrendered for conversion after the fifteenth date immediately preceding the mailing of notice of such redemption and need not treat as Outstanding Securities any Securities authenticated and delivered during such period in exchange for the unconverted portion of any Securities converted in part during such period. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed. Section 1104. Notice of Redemption. Notice of redemption shall be given in the manner provided in Section 106 not less than 30 nor more than 60 days prior to the Redemption Date, unless a shorter period is specified in the Securities to be redeemed, to each Holder of Securities to be redeemed. All notices of redemption shall state: (1) the Redemption Date, (2) the Redemption Price, (3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption of any Securities, the principal amounts) of the particular Securities to be redeemed, (4) if applicable, the current conversion price or rate, (5) if applicable, that the right of the Holder to convert Securities called for redemption shall terminate at the close of business on the Redemption Date (or such other day as may be specified as contemplated in Section 301 for Securities of any series), (6) if applicable, that Holders who want to convert Securities called for redemption must satisfy the requirements for conversion contained in such Securities, (7) that on the Redemption Date the Redemption Price will become due and payable upon each such -78- 91 Security to be redeemed and, if applicable, that, unless the Company defaults in making such redemption payment, interest thereon, if any, or in the case of Original Issue Discount Securities, the original issue discount, shall cease to accrue on and after such date, (8) the place or places where such Securities are to be surrendered for payment of the Redemption Price, and (9) that the redemption is for a sinking fund, if such is the case. Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at Company Request, by the Trustee in the name and at the expense of the Company. Section 1105. Deposit of Redemption Price. On or prior to 10:00 A.M. New York City time on any Redemption Date, the Company shall deposit in immediately available funds with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003 and as required by the Trust Indenture Act) an amount of money (in the currency or units of currency in which the Securities so called for redemption are denominated or an appropriate equivalent thereof) sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date, other than any Securities called for redemption on such date which have been converted prior to the date of such deposit. Section 1106. Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest and the right to convert such Securities or portions thereof, if the terms of such Securities provide for conversion pursuant to Section 301, shall terminate at the close of business on the Redemption Date or such other day as may be specified as contemplated in Section 301 for Securities of such series. On presentation and surrender of such Securities for redemption in accordance with such notice, such Securities shall be paid and redeemed by the Company at the Redemption Price, together with accrued -79- 92 interest to the Redemption Date; provided, however, that, unless otherwise specified as contemplated in Section 301, installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307. If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal thereof so to be redeemed shall, until paid, bear interest from the Redemption Date at the Overdue Rate applicable to such Security and such Security shall remain convertible into Capital Stock until the principal of such Security shall have been paid. If any Security called for redemption pursuant to Section 1101 is converted pursuant to Article Fourteen, any monies deposited with the Trustee for the purpose of paying or redeeming any such Security shall be promptly paid to the Company. Section 1107. Securities Redeemed in Part. Any Security which is to be redeemed only in part shall be surrendered at the place specified in the notice of redemption (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. Section 1108. Rescission of Redemption. In the event that this Section 1108 is specified to be applicable to a series of Securities pursuant to Section 301 and a Redemption Rescission Event shall occur following any day on which a notice of redemption shall have been given pursuant to Section 1104 hereof but at or prior to the time and date fixed for redemption as set forth in such notice of redemption, the Company may, at its sole option, at any time prior to the earlier of (i) the close of business on that day which is two Trading Days following such Redemption Rescission Event and (ii) the time and date fixed for redemption as set forth in such notice, rescind the redemption to which such notice of redemption shall have related by making a public announcement of such rescission -80- 93 (the date on which such public announcement shall have been made being hereinafter referred to as the "Rescission Date"). The Company shall be deemed to have made such announcement if it shall issue a release to the Dow Jones News Service, Reuters Information Services or any successor news wire service. From and after the making of such announcement, the Company shall have no obligation to redeem Securities called for redemption pursuant to such notice of redemption or to pay the Redemption Price therefor and all rights of Holders of Securities shall be restored as if such notice of redemption had not been given. As promptly as practicable following the making of such announcement, the Company shall telephonically notify the Trustee and the Paying Agent of such rescission. The Company shall give notice of any such rescission by first-class mail, postage prepaid, mailed as promptly as practicable but in no event later than the close of business on that day which is five Trading Days following the Rescission Date to each Holder of Securities at the close of business on the Rescission Date, to any other Person that was a Holder of Securities and that shall have surrendered Securities for conversion following the giving of notice of the subsequently rescinded redemption and to the Trustee and the Paying Agent. Each notice of rescission shall (w) state that the redemption described in the notice of redemption has been rescinded, (x) state that any Converting Holder shall be entitled to rescind the conversion of Securities surrendered for conversion following the day on which notice of redemption was given but on or prior to the date of the mailing of the Company's notice of rescission, (y) be accompanied by a form prescribed by the Company to be used by any Converting Holder rescinding the conversion of Securities so surrendered for conversion (and instructions for the completion and delivery of such form, including instructions with respect to any payment that may be required to accompany such delivery) and (z) state that such form must be properly completed and received by the Company no later than the close of business on a date which shall be 15 Trading Days following the date of the mailing of such notice of rescission. ARTICLE TWELVE Sinking Funds Section 1201. Applicability of Article. Securities of any series which are subject to a sinking fund for the retirement of Securities of a series shall be subject to such sinking fund in accordance with their terms and (except as otherwise specified as -81- 94 contemplated in Section 301 for Securities of such series) in accordance with this Article. The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment", and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an "optional sinking fund payment". If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series. Section 1202. Satisfaction of Sinking Fund Payments with Securities. The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities and for any Securities which have been converted pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided, however, that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. Section 1203. Redemption of Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers' Certificate specifying the amount of the next ensuing 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 Securities of that series pursuant to Section 1202 and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice -82- 95 of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107. ARTICLE THIRTEEN Defeasance Section 1301. Applicability of Article; Company's Option to Effect Defeasance or Covenant Defeasance. If pursuant to Section 301 provision is made for either or both of (1) defeasance of the Securities of a series under Section 1302 or (2) covenant defeasance of the Securities of a series under Section 1303, then the provisions of such Section or Sections, as the case may be, together with the other provisions of this Article, shall be applicable to the Securities of such series, and the Company may at its option by or pursuant to a Board Resolution, at any time, with respect to the Securities of such series, elect to have either Section 1302 (if applicable) or Section 1303 (if applicable) be applied to the Outstanding Securities of such series upon compliance with the conditions set forth below in this Article. Section 1302. Defeasance and Discharge. Upon the Company's exercise of the option provided in Section 1301 to have this Section 1302 applied to the Outstanding Securities of a defeasible series, the Company shall be deemed to have been discharged from its obligations with respect to the Outstanding Securities of such series on the date the conditions set forth in Section 1304 are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of Outstanding Securities of such series to receive, solely from the trust fund described in Section 1304 and as more fully set forth in such Section, payments in respect of the principal of and any premium or interest on such Securities when such payments are due, (2) the Company's obligations with respect to such Securities under Sections 304, 305, 306, -83- 96 1002 and 1003, (3) the rights, powers, trusts, duties, and immunities of the Trustee under Sections 304, 305, 306, 308, 309, 506 and 1003, and otherwise the duty of the Trustee to authenticate Securities of such series issued on registration of transfer or exchange and (4) this Article. Subject to compliance with this Article, the Company may exercise its option provided in Section 1301 to have this Section 1302 applied to the Outstanding Securities of any defeasible series notwithstanding the prior exercise of its option provided in Section 1301 to have Section 1303 applied to the Outstanding Securities of such series. Section 1303. Covenant Defeasance. Upon the Company's exercise of the option provided in Section 1301 to have this Section 1303 applied to the Outstanding Securities of any defeasible series, the Company shall be released from its obligations under Sections 1004 and 1005 and Sections 501(4) and 501(5) with respect to the Outstanding Securities of such series on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter, "covenant defeasance"). For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of such series, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section with respect to it, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby. Section 1304. Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to application of either Section l302 or Section 1303 to the Outstanding Securities of such series: (1) the Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another Trustee satisfying the requirements of Section 609 who shall agree to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) money in an amount, or (B) Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day -84- 97 before the due date of any payment, money in an amount, or (C) a combination thereof, sufficient, without reinvestment, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying Trustee) to pay and discharge, (i) the principal of and any premium on and each installment of principal of and any premium and interest on the Outstanding Securities of such series on the Stated Maturity of such principal or installment of principal or interest and (ii) any mandatory sinking fund payments or analogous payments applicable to the Outstanding Securities of such series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities. For this purpose, "Government Obligations" means securities that are (x) direct obligations of the United States of America or, if specified as contemplated in Section 301, the government which issued the currency in which the Securities of such series are payable, for the payment of which its full faith and credit is pledged or (y) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America or, if specified as contemplated in Section 301, such government which issued the currency in which the Securities of such series are payable, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America or such other government, which, in either case, are not callable or redeemable at the option of the obligor thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such Government Obligation or a specific payment of principal of or interest on any such Government Obligation held by such custodian for the account of the holder of such depository receipt; provided, however, that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of principal of or interest on the Government Obligation evidenced by such depository receipt; (2) No Event of Default or event which, with notice or lapse of time or both, would become an Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit; -85- 98 (3) Such defeasance or covenant defeasance shall not cause the Trustee for the Securities of such series to have a conflicting interest for purposes of the Trust Indenture Act with respect to any securities of the Company; (4) Such defeasance or covenant defeasance shall 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; (5) Such defeasance or covenant defeasance shall not cause any Securities of such series then listed on any registered national securities exchange under the Securities Exchange Act of 1934, as amended, to be delisted; (6) In the case of an election under Section l302, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of this Indenture there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such 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 defeasance had not occurred; (7) In the case of an election under Section 1303, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant 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 covenant defeasance had not occurred; (8) Such defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company as defined in the Investment Company Act of 1940, as amended, or such trust shall be qualified under such Act or exempt from regulation thereunder; -86- 99 (9) Such defeasance or covenant defeasance shall be effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 301; and (10) 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 either the defeasance under Section l302 or the covenant defeasance under Section 1303 (as the case may be) have been complied with. Section 1305. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of Section 1003, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying Trustee--collectively, for purposes of this Section 1305, the "Trustee") pursuant to Section 1304 in respect of the Outstanding Securities of such series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through a Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 1304 or the principal and any premium and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities of such series. Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations held by it as provided in Section 1304 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance. -87- 100 Section 1306. Reinstatement. If the Trustee or Paying Agent is unable to apply any money or Government Obligations in accordance with this Article by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company's obligations under this Indenture and each series of Securities shall be revived and reinstated as though no deposit had occurred pursuant to this Article until such time as the Trustee or the Paying Agent is permitted to apply all such money or Governmental Obligations in accordance with this Article; provided, however, that, if the Company has made any payment of interest on or principal of any series of Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such series of Securities to receive such payment from the money or Government Obligations held by the Trustee or the Paying Agent. ARTICLE FOURTEEN Convertible Securities Section 1401. Applicability of Article. Securities of any series which are convertible into Capital Stock at the option of the Holders thereof shall be convertible in accordance with their terms and (unless otherwise specified in one or more indentures supplemental hereto or in a resolution of the Board of Directors as contemplated in Section 301 for Securities of any series) in accordance with this Article. Each reference in this Article Fourteen to "a Security" or "the Securities" refers to the Securities of the particular series that are convertible into Capital Stock. Each reference in this Article to "Capital Stock" into which Securities of any series are convertible refers to Capital Stock into which the Securities of such series are convertible in accordance with their terms (as specified as contemplated in Section 301). If more than one series of Securities with conversion privileges are Outstanding at any time, the provisions of this Article Fourteen shall be applied separately to each such series. Section 1402. Right of Holders to Convert Securities. Subject to and upon compliance with the terms of the Securities and this Article Fourteen, at the option of the Holder thereof, any Security of any series of any authorized denomination, or any portion of the principal amount thereof which is $1,000 or any integral multiple of -88- 101 $1,000, may, at any time during the period specified in the Securities of such series, be converted into duly authorized, validly issued, fully paid and nonassessable shares of the class, or combination of classes, of Capital Stock, as specified in such Security, at the conversion rate for each $1,000 principal amount of Securities (such initial conversion rate reflecting an initial conversion price specified in such Security) in effect on the conversion date, or if such Security or portion thereof shall have been called for redemption, then in respect of such Security or portion thereof until and including, but not after (unless the Company shall default in payment due upon the redemption thereof) the close of business on the date fixed for redemption except that in the case of redemption at the option of the Holder, if specified in the terms of such securities, such option to convert shall terminate upon receipt of written notice of the exercise of such option to redeem, or if an adjustment in the conversion rate has taken place pursuant to the provisions of Section 1405, then at the applicable conversion rate as so adjusted, upon surrender of the Security or Securities, the principal amount of which is so to be converted, to the Company at any time during usual business hours at the office or agency to be maintained by it in accordance with the provisions of Section 1002 accompanied by a written notice of election to convert as provided in Section 1403 and, if so required by the Company and the Trustee, by a written instrument or instruments of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder or his attorney duly authorized in writing. All Securities surrendered for conversion shall, if surrendered to the Company or any conversion agent, be delivered to the Trustee for cancellation and canceled by it, or shall, if surrendered to the Trustee, be canceled by it, as provided in Section 309. The initial conversion price or conversion rate in respect of a series of Securities shall be as specified in the Securities of such series. The conversion price or conversion rate will be subject to adjustment on the terms set forth in Section 1405 or such other or different terms, if any, as may be specified by Section 301 for Securities of such series. Provisions of this Indenture that apply to conversion of all of a Security also apply to conversion of a portion of it. Section 1403. Issuance of Shares of Capital Stock on Conversion. (1) As promptly as practicable after the surrender, as herein provided, of any Security or Securities for conversion, the Company shall deliver or cause to be delivered at its said office or agency to or upon the written -89- 102 order of the Holder of the Security or Securities so surrendered a certificate or certificates representing the number of duly authorized, validly issued, fully paid and nonassessable shares of Capital Stock into which such Security or Securities may be converted in accordance with the terms thereof and the provisions of this Article Fourteen. Prior to the delivery of such certificate or certificates, the Company shall require a written notice at its said office or agency from the Holder of the Security or Securities so surrendered stating that the Holder irrevocably elects to convert such Security or Securities, or, if less than the entire principal amount thereof is to be converted, stating the portion thereof to be converted. Such notice shall also state the name or names (with address and social security or other taxpayer identification number) in which said certificate or certificates are to be issued. Such conversion shall be deemed to have been made at the time that such Security or securities shall have been surrendered for conversion and such notice shall have been received by the Company or the Trustee, the rights of the Holder of such Security or Securities as a Holder shall cease at such time, the person or persons entitled to receive the shares of Capital Stock upon conversion of such Security or Securities shall be treated for all purposes as having become the record holder or holders of such shares of Capital Stock at such time and such conversion shall be at the conversion rate in effect at such time. In the case of any Security of any series which is converted in part only, upon such conversion, the Company shall execute and the Trustees or any Authenticating Agent shall authenticate and deliver to the Holder thereof, as requested by such Holder, a new Security or Securities of such series of authorized denominations in aggregate principal amount equal to the unconverted portion of such Security. If the last day on which a Security may be converted is not a Business Day in a place where the conversion agent for the applicable series of Securities is located, the Security may be surrendered to that conversion agent on the next succeeding day that is a Business Day. The Company will not be required to deliver certificates for shares of Capital Stock upon conversion while its stock transfer books are closed for a meeting of shareholders or for the payment of dividends or for any other purpose, but certificates for shares of Capital Stock shall be delivered as soon as the stock transfer books shall again be opened. (2) Notwithstanding anything to the contrary contained herein, in the event the Company shall have rescinded a redemption of Securities pursuant to Section 1108 -90- 103 hereof, any Holder of Securities that shall have surrendered Securities for conversion following the day on which notice of the subsequently rescinded redemption shall have been given but prior to the later of (a) the close of business on the Trading Day next succeeding the date on which public announcement of the rescission of such redemption shall have been made and (b) the date of the mailing of the notice of rescission required by Section 1108 hereof (a "Converting Holder") may rescind the conversion of such Securities surrendered for conversion by (i) properly completing a form prescribed by the Company and mailed to Holders of Securities (including Converting Holders) with the Company's notice of rescission, which form shall provide for the certification by any Converting Holder rescinding a conversion on behalf of any beneficial owner (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of Securities that the beneficial ownership (within the meaning of such Rule) of such Securities shall not have changed from the date on which such Securities were surrendered for conversion to the date of such certification and (ii) delivering such form to the Company no later than the close of business on that date which is fifteen Trading Days following the date of the mailing of the Company's notice of rescission. The delivery of such form by a Converting Holder shall be accompanied by (x) any certificates representing shares of Capital Stock or other securities issued to such Converting Holder upon a conversion of Securities that shall be rescinded by the proper delivery of such form (the "Surrendered Securities"), (y) any securities, evidences of indebtedness or assets (other than cast) distributed by the Company to such Converting Holder by reason of such Converting Holder being a record holder of Surrendered Securities and (z) payment in New York Clearing House funds or other funds acceptable to the Company of an amount equal to the sum of (I) any cash such Converting Holder may have received in lieu of the issuance of fractional Surrendered Securities and (II) any cash paid or payable by the Company to such Converting Holder by reason of such Converting Holder being a record holder of Surrendered Securities. Upon receipt by the Company of any such form properly completed by a Converting Holder and any certificates, securities, evidences of indebtedness, assets or cash payments required to be returned by such Converting Holder to the Company as set forth above, the Company shall instruct the transfer agent or agents for shares of Capital Stock or other securities to cancel any certificates representing Surrendered Securities (which Surrendered Securities shall be deposited in the treasury of the Company) and shall instruct the Security Registrar to reissue certificates representing Securities to such Converting Holder (which Securities shall be deemed to have been Outstanding at all times during the period following their surrender for conversion). The Company shall, as promptly as -91- 104 practicable, and in no event more than five Trading Days following the receipt of any such properly completed form and any such certificates, securities, evidences of indebtedness, assets or cash payments required to be so returned, pay to the Holder of Securities surrendered to the Company pursuant to a rescinded conversion or as otherwise directed by such Holder any interest paid or other payment made to Holders of Securities during the period from the time such Securities shall have been surrendered for conversion to the rescission of such conversion. All questions as to the validity, form, eligibility (including time of receipt) and acceptance of any form submitted to the Company to rescind the conversion of Securities, including questions as to the proper completion or execution of any such form or any certification contained therein, shall be resolved by the Company, whose determination shall be final and binding. Section 1404. No Payment or Adjustment for Interest or Dividends. Unless otherwise specified as contemplated in Section 301 for Securities of such series, Securities surrendered for conversion during the period from the close of business on any regular record date (or special record date for payment of defaulted interest) next preceding any Interest Payment Date to the opening of business on such Interest Payment Date (except Securities called for redemption on a Redemption Date within such period) when surrendered for conversion must be accompanied by payment of an amount equal to the interest thereon which the Holder is to receive on such Interest Payment Date. Payment of interest shall be made, as of such Interest Payment Date or such date, as the case may be, to the Holder of the Securities as of such regular or special record date, as applicable. Except where Securities surrendered for conversion must be accompanied by payment as described above, no interest on converted Securities will be payable by the Company on any Interest Payment Date subsequent to the date of conversion. No other payment or adjustment for interest or dividends is to be made upon conversion. Notwithstanding the foregoing, upon conversion of any Original Issue Discount Security, the fixed number of shares of Capital Stock into which such Security is convertible delivered by the Company to the Holder thereof shall be applied, first, to pay the accrued original issue discount attributable to the period from the date of issuance to the date of conversion of such Security, and, second, to pay the balance of the principal amount of such Security. -92- 105 Section 1405. Adjustment of Conversion Rate. Unless otherwise specified as contemplated in Section 301 for Securities of such series, the conversion rate for Securities in effect at any time shall be subject to adjustment as follows: (a) In case the Company shall (i) declare a dividend or make a distribution on the class of Capital Stock into which Securities of such series are convertible in shares of such Capital Stock, (ii) subdivide the outstanding shares of the class of Capital Stock into which Securities of such Shares are convertible into a greater number of shares, (iii) combine the outstanding shares of the class of Capital Stock into which Securities of such series are convertible into a smaller number of shares, (iv) issue by reclassification of the shares of the class of Capital Stock into which securities of such series are convertible (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation) any shares, the conversion rate for the Securities of such series in effect at the time of the record date for such dividend or distribution, or the effective date of such subdivision, combination or reclassification, shall be proportionately adjusted so that the Holder of any Security of such series surrendered for conversion after such time shall be entitled to receive the number and kind of shares which he would have owned or have been entitled to receive had such Security been converted immediately prior to such time. Similar adjustments shall be made whenever any event listed above shall occur. (b) In case the Company shall fix a record date for the issuance of rights or warrants to all holders of the class of Capital Stock into which Securities of such series are convertible entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase shares of such class of Capital Stock (or securities convertible into shares of such class of Capital Stock) at a price per share (or, in the case of a right or warrant to purchase securities convertible into such class of Capital Stock, having a conversion price per share, after adding thereto the exercise price, computed on the basis of the maximum number of shares of such class of Capital Stock issuable upon conversion of such convertible securities, per share of such class of Capital Stock, so issuable) less than the current market price per share of such class of Capital Stock (as defined in subsection (d) below) on -93- 106 the date on which such issuance was declared or otherwise announced by the Company (the "Determination Date"), the number of shares of such class of Capital Stock into which each $1,000 principal amount of Securities shall be convertible after such record date shall be determined by multiplying the number of shares of such class of Capital Stock into which such principal amount of Securities was convertible immediately prior to such record date by a fraction, of which the numerator shall be the number of shares of such class of Capital Stock outstanding on the Determination Date plus the number of additional shares of such class of Capital Stock offered for subscription or purchase (or in the case of a right or warrant to purchase securities convertible into such class of Capital Stock, the aggregate number of additional shares of such class of Capital Stock into which the convertible securities so offered are initially convertible), and of which the denominator shall be the number of shares of such class of Capital Stock outstanding on the Determination Date plus the number of shares of such class of Capital Stock obtained by dividing the aggregate offering price of the total number of shares so offered (or, in the case of a right or warrant to purchase securities convertible into such class of Capital Stock, the aggregate initial conversion price of the convertible securities so offered, after adding thereto the aggregate exercise price of such rights or warrants computed on the basis of the maximum number of shares of such class of Capital Stock issuable upon conversion of such convertible securities) by such current market price. Shares of such class of Capital Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed; and to the extent that shares of such class of Capital Stock are not delivered (or securities convertible into shares of such class of Capital Stock are not delivered) after the expiration of such rights or warrants (or, in the case of rights or warrants to purchase securities convertible into such class of Capital Stock once exercised, the expiration of the conversion right of such securities) the conversion rate shall be readjusted to the conversion rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants (or securities convertible into shares) been made upon the basis of delivery of only the number of shares actually delivered. In the event that such rights or warrants are not so issued, the conversion rate shall again be adjusted to be the conversion rate which would be in effect if such record date had not been fixed. -94- 107 (c) In case the Company shall fix a record date for the making of a distribution to all holders of the class of Capital Stock into which Securities of such series are convertible (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of its indebtedness or assets (excluding any cash dividends paid from earned surplus and dividends payable in capital Stock for which adjustment is made pursuant to subsection (a) above) or subscription rights or warrants (excluding subscription rights or warrants to purchase the class of Capital Stock into which securities of such series are convertible), the number of shares of such class of Capital Stock into which each $1,000 principal amount of Securities of such series shall be convertible after such record date shall be determined by multiplying the number of shares of such class of Capital Stock into which such principal amount of Securities was convertible immediately prior to such record date by a fraction, of which the numerator shall be the fair market value of the assets of the Company, after deducting therefrom all liabilities of the Company and all preferences (including accrued but unpaid dividends) in respect of classes of Capital Stock of the Company having a preference with respect to the assets of the Company over such class of Capital Stock (all as determined by the Board of Directors, whose determination shall be conclusive, and described in an Officers' Certificate, filed with the Trustee and each conversion agent) on such record date, and of which the denominator shall be such fair market value after deducting therefrom such liabilities and preferences, less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive, and described in a statement filed with the Trustee and each conversion agent) of the assets or evidences of indebtedness, so distributed or of such subscription rights or warrants applicable, so distributed. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the conversion rate shall again be adjusted to the conversion rate which would then be in effect if such record date had not been fixed. (d) For the purpose of any computation under subsection (b) above and Section 1406, the current market price per share of the Capital Stock on any date as of which such price is to be computed shall mean the average of the Closing Price Per Share for the 30 consecutive Business Days commencing 45 Business Days before such date. -95- 108 (e) No adjustment in the conversion rate shall be required unless such adjustment would require a cumulative increase or decrease of at least 1% in such rate; provided, however, that any adjustments which by reason of this subsection (e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment; and provided, further, that adjustments shall be required and made in accordance with the provisions of this Article Fourteen (other than this subsection (e)) not later than such time as may be required in order to preserve the taxfree nature of a distribution for United States income tax purposes to the Holders of Securities of the class of Capital Stock into which such Securities are convertible. All calculations under this Article Fourteen shall be made to the nearest cent or to the nearest one-thousandth of a share, as the case may be. Anything in this Section 1405 to the contrary notwithstanding, the Company shall be entitled to make such adjustments in the conversion rate, in addition to those required by this Section 1405, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or securities, or distribution of securities convertible into or exchangeable for stock hereafter made by the Company to its shareholders shall not be taxable for United States income tax purposes. (f) Whenever the conversion rate is adjusted, as herein provided, the Company shall promptly file with the Trustees and with the office or agency maintained by the Company for the conversion of Securities of such series pursuant to Section 1002, a certificate of a firm of independent public accountants of recognized national standing selected by the Board of Directors (who may be the regular accountants employed by the Company) setting forth the conversion rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment and a computation thereof. Such certificate shall be conclusive evidence of the correctness of such adjustment. Neither the Trustee nor any conversion agent shall be under any duty or responsibility with respect to any such certificate or any facts or computations set forth therein, except to exhibit said certificate from time to time to any Holder of Securities of such series desiring to inspect the same. The Company shall promptly cause a notice setting forth the adjusted conversion rate to be mailed to the Holders of Securities of such series, as their names and addresses appear upon the registration books of the Company. -96- 109 (g) In the event that at any time, as a result of shares of any other class of Capital Stock of the Company becoming issuable in exchange or substitution for or in lieu of shares of the class of Capital Stock into which such Securities are convertible or as a result of an adjustment made pursuant to subsection (a) above, the Holder of any Security of such series thereafter surrendered for conversion shall become entitled to receive any shares of the Company other than shares of the class of Capital Stock into which the Securities of such series are convertible, thereafter the number of such other shares so receivable upon conversion of any Security shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the class of Capital Stock into which the Securities of such series are convertible contained in subsections (a) to (k), inclusive, above, and the provisions of this Article Fourteen with respect to the class of Capital Stock into which the Securities of such series are convertible shall apply on like terms to any such other shares. (h) In any case in which this Section 1405 shall require that any adjustment be made effective as of or retroactively immediately following a record date, the Company may elect to defer (but only for five (5) Trading Days following the filing of the statement referred to in Section 1408) issuing to the Holder of any Securities converted after such record date the shares of Capital Stock issuable upon such conversion over and above the shares of Capital Stock of the Company issuable upon such conversion on the basis of the conversion price prior to adjustment; provided, however, that the Company shall deliver to such Holder a due bill or other appropriate instrument evidencing such Holder's right to receive such additional shares upon the occurrence of the event requiring such adjustment. (i) The conversion rate with respect to any Original Issue Discount Securities, the terms of which provide for convertibility, shall not be adjusted during the term of such Original Issue Discount Securities for accrued original issue discount. (j) In the event that the Securities of any series are convertible into more than one class of Capital Stock, the provisions of this Section 1405 shall apply separately to events affecting each such class. -97- 110 (k) No adjustment shall be made pursuant to this Section 1405 (i) if the effect thereof would be to reduce the conversion price below the par value (if any) of the Capital Stock or (ii) subject to 1403(h) hereof, with respect to any Security that is converted prior to the time such adjustment otherwise would be made. Section 1406. No Fractional Shares to be Issued. No fractional shares of Capital Stock shall be issued upon conversions of Securities. If more than one Security of any series shall be surrendered for conversion at one time by the same Holder, the number of full shares which shall be issuable upon conversion thereof shall be computed on the basis of the aggregate principal amount of the Securities of such series (or specified portions thereof to the extent permitted hereby) so surrendered. Instead of a fraction of a share of Capital Stock which would otherwise be issuable upon conversion of any Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction of a share in an amount equal to the same fractional interest of the Closing Price Per Share of Capital Stock on the Business Day next preceding the day of conversion. Section 1407. Preservation of Conversion Rights Upon Consolidation, Merger, Sale or Conveyance. In case of any consolidation of the Company with, or merger of the Company into, any other corporation (other than a consolidation or merger in which the Company is the continuing corporation), or in the case of any sale or transfer of all or substantially all of the assets of the Company, the corporation formed by such consolidation or the corporation into which the Company shall have been merged or the corporation which shall have acquired such assets, as the case may be, shall execute and deliver to the Trustee, a supplemental indenture, subject to the provisions of Articles Eight and Nine as they relate to supplemental indentures, providing that the Holder of each Security then Outstanding of a series which was convertible into Capital Stock shall have the right thereafter to convert such security into the kind and amount of shares of stock and other securities and property, including cash, receivable upon such consolidation, merger, sale or transfer by a holder of the number of shares of Capital Stock of the Company into which such Securities might have been converted immediately prior to such consolidation, merger, sale or transfer. Such supplemental indenture shall conform to the provisions of the Trust Indenture Act and shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article Fourteen. Neither -98- 111 the Trustee nor any conversion agent shall be under any responsibility to determine the correctness of any provision contained in any such supplemental indenture relating either to the kind or amount of shares of stock or other securities or property receivable by Holders of Securities upon the conversion of their Securities after any such consolidation, merger, sale or transfer, or to any adjustment to be made with respect thereto and, subject to the provisions of Section 601, may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, an Opinion of Counsel with respect thereto. If in the case of any such consolidation, merger, sale or transfer, the stock or other securities and property receivable by a Holder of Securities includes stock or other securities and property of a corporation other than the successor or purchasing corporation, then such supplemental indenture shall also be executed by such other corporation and shall contain such additional provisions to protect the interests of the Holders of the Securities as the Board of Directors shall reasonably consider necessary. The above provisions of this Section 1407 shall similarly apply to successive consolidations, mergers, sales or transfers. Section 1408. Notice to Holders of Securities of a Series Prior to Taking Certain Types of Action. With respect to the Securities of any series, in case: (a) the Company shall authorize the issuance to all holders of the class of Capital Stock into which Securities of such series are convertible of rights or warrants to subscribe for or purchase shares of its Capital Stock or any other right; (b) the Company shall authorize the distribution to all holders of the class of Capital Stock into which Securities of such series are convertible of evidences of its indebtedness or assets (except for the exclusions with respect to certain dividends set forth in Section 1405(c)); (c) of any subdivision, combination or reclassification of the class of Capital Stock into which Securities of such series are convertible or of any consolidation or merger to which the Company is a party and for which approval by the shareholders of the Company is required, or of the sale or transfer of all or substantially all of the assets of the Company; or (d) of the voluntary or involuntary dissolution, liquidation or winding up of the Company; -99- 112 then the Company shall cause to be filed with the Trustee and at the office or agency maintained for the purpose of conversion of Securities of such series pursuant to Section 1002, and shall cause to be mailed to the Holders of Securities of such series, at their last addresses as they shall appear upon the registration books of the Company, at least ten days prior to the applicable record date hereinafter specified, a notice stating (i) the date as of which the holders of such class of Capital Stock to be entitled to receive any such rights, warrants or distribution are to be determined, or (ii) the date on which any such subdivision, combination, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation, winding up or other action is expected to become effective, and the date as of which it is expected that holders of record of such class of Capital Stock shall be entitled to exchange their Capital Stock of such class for securities or other property, if any, deliverable upon such subdivision, combination, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation, winding up or other action. The failure to give the notice required by this Section 1408 or any defect therein shall not affect the legality or validity of any distribution, right, warrant, subdivision, combination, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation, winding up or other action, or the vote upon any of the foregoing. Such notice shall also be published by and at the expense of the Company not later than the aforesaid filing date at least once in an Authorized Newspaper. Section 1409. Covenant to Reserve Shares for Issuance on Conversion of Securities. The Company covenants that at all times it will reserve and keep available out of each class of its authorized Capital Stock, free from preemptive rights, solely for the purpose of issue upon conversion of Securities of any series as herein provided, such number of shares of Capital Stock of such class as shall then be issuable upon the conversion of all outstanding Securities of such series. The Company covenants that all shares of Capital Stock which shall be so issuable shall, when issued or delivered, be duly and validly issued shares of the class of authorized Capital Stock into which Securities of such series are convertible, and shall be fully paid and nonassessable, free of all liens and charges and not subject to preemptive rights and that, upon conversion, the appropriate capital stock accounts of the Company will be duly credited. -100- 113 Section 1410. Compliance with Governmental Requirements. The Company covenants that if any shares of Capital Stock required to be reserved for purposes of conversion of Securities hereunder require registration or listing with or approval of any governmental authority under any Federal or State law, pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act, or any national or regional securities exchange on which such Capital Stock is listed at the time of delivery of any shares of such Capital Stock, before such shares may be issued upon conversion, the Company will use its best efforts to cause such shares to be duly registered, listed or approved, as the case may be. Section 1411. Payment of Taxes Upon Certificates for Shares Issued Upon Conversion of Securities. The issuance of certificates for shares of Capital Stock upon the conversion of Securities shall be made without charge to the converting Holders for any tax (including, without limitation, all documentary and stamp taxes) in respect of the issuance and delivery of such certificates, and such certificates shall be issued in the respective names of, or in such names as may be directed by, the Holders of Securities converted; provided, however, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any such certificate in a name other than that of the Holder of the Security converted, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. Section 1412. Trustee's Duties with Respect to Conversion Provisions. The Trustee and any conversion agent shall not at any time be under any duty or responsibility to any Holder of Securities to determine whether any facts exist which may require any adjustment of the conversion rate, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. Neither the Trustee nor any conversion agent shall be accountable with respect to the registration under securities laws, listing, validity or value (or the kind or amount) of any shares of Capital Stock, or of any other securities or property, which may at any time be issued or delivered upon the conversion of any Security; and neither the Trustee nor any conversion agent makes any representation with respect thereto. Neither the Trustee nor any conversion agent shall -101- 114 be responsible or liable for any failure of the Company to make any cash payment or to issue, transfer or deliver any shares of stock or stock certificates or other securities or property upon the surrender of any Security for the purpose of conversion; and the Trustee, subject to the provisions of Section 601, and any conversion agent shall not be responsible or liable for any failure of the Company to comply with any of the covenants of the Company contained in this Article Fourteen. Section 1413. Corporate Action Regarding Par Value of Capital Stock. Before taking any action which would cause an adjustment reducing the applicable conversion price below the then par value (if any) of the shares of Capital Stock deliverable upon conversion of the Securities, the Company will take any corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue fully paid and nonassessable shares of Capital Stock at such adjusted conversion price. Section 1414. Company Determination Final. Any determination that the Company or the Board of Directors must make pursuant to this Article is conclusive. ARTICLE FIFTEEN Subordination Section 1501. Agreement to Subordinate The Company covenants and agrees, and each Holder of a subordinated Security or any Coupon appertaining thereto issued hereunder, by his acceptance thereof, likewise covenants and agrees, that all subordinated Securities and any Coupons appertaining thereto shall be issued subject to the provisions of this Article; and each Person holding any subordinated Security or any Coupon appertaining thereto, whether upon original issue or upon transfer, assignment or exchange thereof, accepts and agrees that the principal of and interest (and premium, if any) on all subordinated Securities or any Coupon appertaining thereto issued hereunder shall, to the extent and in the manner herein set forth, be subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness, and that the subordination is for the benefit of the holders of the Senior Indebtedness. -102- 115 Section 1502. Payments to Holders of Subordinated Securities. As to each series of subordinated Securities and any Coupons appertaining thereto, if any, issued hereunder, in the event (a) of the occurrence of any event specified in Section 501(6) or (7) herein, or (b) that (i) a default shall have occurred with respect to the payment of principal of or interest on or other monetary amounts due and payable with respect to any Senior Indebtedness, or (ii) there shall have occurred an event of default (other than a default in the payment of principal or interest or other monetary amounts due and payable) in respect of any Senior Indebtedness, as defined in such Senior Indebtedness or in the instrument under which the same is outstanding, permitting the holder or holders thereof to accelerate the maturity thereof, and such default or event of default shall not be cured or was continued beyond the period of grace, if any, in respect thereof, and such default or event of default shall not have been waived or shall not have ceased to exist, or (c) separately with respect to each series of Securities, that the principal of and accrued interest on such Securities shall have been declared due and payable pursuant to Section 502 and such declaration shall not have been rescinded and annulled as provided in Section 502, then the holders of all Senior Indebtedness shall first be entitled to receive payment in full of all amounts due or to become due thereon, or provision shall be made, in accordance with the terms of such Senior Indebtedness for such payment in money or money's worth, before the Holders of such series of subordinated Securities or any Coupons appertaining thereto are entitled to receive a payment on account of the principal of or interest on (or premium, if any) the indebtedness evidenced by such series of subordinated Securities or any such Coupons appertaining thereto, including, without limitation, any payments made pursuant to Articles Eleven and Twelve, or any cash payments to purchase such series of subordinated Securities at the option of the Holders thereof. Upon the occurrence of any event specified in Section 501(6) or (7) herein, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Holders of the subordinated Securities or any Coupons appertaining thereto and or the Trustee under this Indenture would be entitled, except for the provisions hereof, shall be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution or, to the extent required by the next succeeding paragraph, by the Holders of the subordinated Securities or any Coupons appertaining thereto or the Trustee, if received by them or it, directly to the -103- 116 representative of the holders of Senior Indebtedness (which representative shall pay pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders), or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay all Senior Indebtedness in full after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness, before any payment or distribution is made to the Holders of the indebtedness evidenced by the subordinated Securities or any Coupons appertaining thereto (including any cash payments to repurchase such Securities at the option of the Holders thereof) or to the Trustee under this Indenture. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing provisions of this Section, shall be received by the Trustee under this Indenture or the Holders of the subordinated Securities or any Coupons appertaining thereto before all Senior Indebtedness is paid in full or provision is made for such payment in accordance with its terms, and if such fact shall, at or prior to the time of such payment or distribution, have been known to the Trustee, then such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the representative of the holders of such Senior Indebtedness, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior Indebtedness may have been issued, as their respective interest may appear, for application to the payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full in accordance with its distribution to or for the holders of such Senior Indebtedness. For purposes of this Article only, the words "cash, property or securities" shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of arrangement, reorganization or readjustment, the payment of which is subordinated (at least to the extent provided in this Article with respect to the subordinated Securities) to the payment of all Senior Indebtedness which may at the time be outstanding; provided that (i) the Senior Indebtedness is assumed by the new corporation, if any, resulting from any such arrangement, reorganization or readjustment, and (ii) the rights of the holders of the Senior Indebtedness are not, without the consent of such holders, altered by such arrangement, reorganization or -104- 117 readjustment. The consolidation of the Company with, or the merger of the Company with or into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of all or substantially all of its assets to another corporation upon the terms and conditions provided in Article Eight shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article Eight. Nothing in this Section shall apply to claims of, or payments to, the Trustee under or pursuant to Article Six, except as expressly provided therein. This Section shall be subject to the further provisions of Section 1505. Section 1503. Subrogation. Subject to the payment in full of all Senior Indebtedness, the Holders of the subordinated Securities and any Coupon appertaining thereto subject to the provisions of Section 1502 shall be subrogated (equally and ratably with the holders of all obligations of the Company which by their express terms are subordinated to Senior Indebtedness of the Company to the same extent as the subordinated Securities are subordinated and which are entitled to like rights of subrogation) to the rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company applicable to the Senior Indebtedness until the principal of and interest on such subordinated Securities and the amounts owed pursuant to any such Coupons appertaining thereto shall be paid in full; and for the purpose of such subrogation, no payments of distributions to the holders of the Senior Indebtedness of any cash, property or securities to which the Holders of such subordinated Securities or any such Coupons or the Trustee on their behalf would be entitled except for the provisions of this Article, and no payment over pursuant to the provisions of this Article to the holders of Senior Indebtedness by Holders of such subordinated Securities or any such Coupons or the Trustee on their behalf shall, as between the Company, its creditors other than holders of Senior Indebtedness and the Holders of such subordinated Securities or any such Coupons, be deemed to be a payment by the Company to or on account of the Senior Indebtedness; and no payments or distributions of cash, property or securities to or for the benefit of the Holders pursuant to the subrogation provision of this Article, which would otherwise have been paid to the holders of Senior Indebtedness, shall be deemed to be a payment by the Company to or for the account of such Securities. The provisions of this Article are intended solely for the purpose of defining the relative rights of the -105- 118 Holders of the Securities, on the one hand, and the holders of the Senior Indebtedness, on the other hand. Nothing contained in this Article or elsewhere in this Indenture or in the subordinated Securities is intended to or shall impair, as between the Company, its creditors other than the holders of Senior Indebtedness, and the Holders of the subordinated Securities, the obligation of the Company, which is absolute and unconditional, to pay to the Holders of the subordinated Securities the principal of and interest on the subordinated Securities and the amounts owed pursuant to any Coupons appertaining thereto as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights against the Company of the Holders of the subordinated Securities and creditors of the Company other than the holders of Senior Indebtedness, nor shall anything herein or therein prevent the Holder of any subordinated Security or the Trustee on his behalf from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article of the holders of Senior Indebtedness in respect of cash, property or securities of the Company received upon the exercise of any such remedy. Upon any payment or distribution of assets of the Company referred to in this Article, the Trustee, subject to the provisions of Sections 601 and 603, and the Holders of the subordinated Securities and any Coupons appertaining thereto shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which such insolvency, bankruptcy, dissolution, winding-up, liquidation, arrangement or reorganization proceedings are pending, or a certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of the subordinated Securities and of any Coupons appertaining thereto, for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article. Section 1504. Authorization by Holders of Subordinated Securities. Each Holder of a subordinated Security or Coupon appertaining thereto by his acceptance thereof authorizes the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in -106- 119 this Article and appoints the Trustee his attorney-in-fact for any and all such purposes. Section 1505. Notice to Trustee. The Company shall give prompt written notice to the Trustee and to any Paying Agent of any fact known to the Company which would prohibit the making of any payment of moneys to or by the Trustee or any paying agent in respect of the subordinated Securities or any Coupons appertaining thereto pursuant to the provisions of this Article. Regardless of anything to the contrary contained in this Article or elsewhere in this Indenture, the Trustee shall not be charged with knowledge of the existence of any Senior Indebtedness or of any default or event of default with respect to any Senior Indebtedness or of any other facts which would prohibit the making of any payment of moneys to or by the Trustee in respect of the subordinated Securities or any Coupons appertaining thereto, unless and until the Trustee shall have received notice in writing at its Corporate Trust Office to that effect signed by an officer of the Company, or by a holder or agent of a holder of Senior Indebtedness who shall have been certified by the Company or otherwise established to the reasonable satisfaction of the Trustee to be such holder or agent, or by the trustee under any indenture pursuant to which Senior Indebtedness shall be outstanding, and, prior to the receipt of any such written notice, the Trustee shall, subject to Sections 601 and 603, be entitled to assume that no such facts exist; provided that if on a date at least two Business Days prior to the date upon which by the terms hereof any such moneys shall become payable for any purpose (including, without limitation, the payment of the principal of or interest on any Security) the Trustee shall not have received with respect to such moneys the notice provided for in this section, then, regardless of anything herein to the contrary, the Trustee shall have full power and authority to receive such moneys and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it on or after such prior date. Regardless of anything to the contrary herein (but subject, in the case of clause (a) of this paragraph, to the second paragraph of Section 1502), nothing shall prevent (a) any payment by the Company or the Trustee to the Holders of subordinated Securities of amounts in connection with a redemption of subordinated Securities if (i) notice of such redemption has been given pursuant to Article Eleven prior to the receipt by the Trustee of written notice as aforesaid, and (ii) such notice of redemption is given not earlier than 60 days before the redemption date, or (b) any payment by the -107- 120 Trustee to the Holders of subordinated Securities of amounts deposited with it pursuant to Section 1302. Subject to Sections 601 and 603, the Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a trustee or other representative on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness or a trustee or other representative on behalf of any such holder. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article, and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. Section 1506. Trustee's Relation to Senior Indebtedness The Trustee and any agent of the Company or the Trustee shall be entitled to all the rights set forth in this Article with respect to any Senior Indebtedness which may at any time be held by it in its individual or any other capacity to the same extent as any other holder of Senior Indebtedness and nothing in the Trust Indenture Act or in this Indenture shall deprive the Trustee or any such agent of any of its rights as such holder. Nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section 607. With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article, and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and, subject to the provisions of Sections 601 and 603, the Trustee shall not be liable to any holder of Senior Indebtedness if it shall in good faith pay over or deliver to Holders of subordinated Securities, the Company or any other Person moneys or assets to which any holder of Senior Indebtedness shall be entitled by virtue of this Article or otherwise. -108- 121 Section 1507. No Impairment of Subordination. No right of any present or future holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any such holder may have or otherwise be charged with. -109- 122 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written. ASARCO INCORPORATED By ------------------------- Title: Attest: By ------------------------- Title: [SEAL] CHEMICAL BANK, as Trustee By ------------------------ Attest: By ------------------------- Title: [SEAL] -110- 123 STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) On this day of , 1994, before me personally came __________________________, to me known, who, being by me duly sworn, did depose and say that he/she is _______________________________________________ of ASARCO Incorporated, one of the corporations described in and which executed the foregoing instrument; that he/she knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he/she signed his/her name thereto by like authority. [NOTARIAL SEAL] --------------------------- Notary Public 124 STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) On this day of , 1994, before me personally came _______________________, to me known, who, being by me duly sworn, did depose and say that he/she is __________________________________ of Chemical Bank, one of the corporations described in and which executed the foregoing instrument; that he/she knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he/she signed his/her name thereto by like authority. [NOTARIAL SEAL] --------------------------- Notary Public EX-4.2 4 FORM OF DEPOSIT AGREEMENT 1 EXHIBIT 4.2 - -------------------------------------------------------------------------------- ------------------------------ ---------------, AS DEPOSITARY, AND THE HOLDERS FROM TIME TO TIME OF THE DEPOSITARY RECEIPTS DESCRIBED HEREIN ------------------------- DEPOSIT AGREEMENT ------------------------- Dated as of --------------- --, 1994 - -------------------------------------------------------------------------------- 2 TABLE OF CONTENTS*/
Page ---- ARTICLE I. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARTICLE II. Form of Receipts, Deposit of Stock, Execution and Delivery, Transfer, Surrender and Redemp- tion of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SECTION 2.01. Form and Transfer of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 SECTION 2.03. Redemption of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 SECTION 2.04. Registration of Transfer of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 SECTION 2.05. Split-ups and Combinations of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 SECTION 2.06. Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 SECTION 2.07. Lost Receipts, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 SECTION 2.08. Cancellation and Destruction of Surrendered Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
- ---------------------------------- */ This table of contents does not constitute a part of the Agreement to which it is attached. (i) 3
Page ---- ARTICLE III. Certain Obligations of Holders of Receipts and Warranties of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 SECTION 3.01. Filing Proofs, Certificates and Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 SECTION 3.02. Payment of Taxes or Other Govern- mental Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 SECTION 3.03. Warranty as to Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 SECTION 3.04. Warranty as to Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 ARTICLE IV. The Deposited Securities: Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 SECTION 4.01. Cash Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 SECTION 4.02. Distributions Other than Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 SECTION 4.03. Notice of Dividends, etc.; Fix- ing of Record Date for Holders of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 SECTION 4.04. Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 SECTION 4.05. Changes Affecting Deposited Secu- rities and Reclassifications, Recapitalizations, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 SECTION 4.06. Inspection of Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 4.07. Lists of Receipt Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ARTICLE V. The Depositary, the Depositary's Agents, the Registrar and the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the Deposi- tary; Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(ii) 4
Page ---- SECTION 5.02. Prevention of or Delay in Perfor- mance by the Depositary, the Depositary's Agents, the Regis- trar or the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the Registrar and the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 SECTION 5.04. Resignation and Removal of the Depositary; Appointment of Suc- cessor Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 SECTION 5.05. Corporate Notices and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 SECTION 5.06. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 SECTION 5.07. Charges and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 SECTION 5.08. Retention of Depositary Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 ARTICLE VI. Amendment and Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 SECTION 6.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 SECTION 6.02. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 ARTICLE VII. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 SECTION 7.01. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 SECTION 7.02. Exclusive Benefit of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 SECTION 7.03. Invalidity of Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 SECTION 7.04. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 SECTION 7.05. Depositary's Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 SECTION 7.06. Holders of Receipts Are Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 SECTION 7.07. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 SECTION 7.08. Inspection of Deposit Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(iii) 5
Page ---- SECTION 7.09. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 EXHIBIT A - FORM OF DEPOSITARY RECEIPT
(iv) 6 DEPOSIT AGREEMENT dated as of ------------ --, 1994 among Asarco Incorporated, a New Jersey Corporation, ------------------, a ------------------- corporation, and the holders from time to time of the Receipts described herein. WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit Agreement, for the deposit of _________ Depositary Shares with the Depositary for the purposes set forth in this Deposit Agreement and for the issuance hereunder of Receipts evidencing Depositary Shares in respect of the Stock so deposited; and WHEREAS, the Receipts are to be substantially in the form of Exhibit A annexed hereto, with appropriate insertions, modifications and omissions, as hereinafter provided in this Deposit Agreement; NOW, THEREFORE, in consideration of the premises, the parties hereto agree as follows: ARTICLE I. Definitions The following definitions shall for all purposes, unless otherwise indicated, apply to the respective terms used in this Deposit Agreement and the Receipts. "Certificate" shall mean the Certificate of Designations of the Restated Articles of Incorporation of the Company, as amended form time to time, filed with the Secretary of State of the State of New Jersey establishing the Stock as a series of preferred stock of the Company. "Company" shall mean Asarco Incorporated, a New Jersey corporation, and its successors. "Deposit Agreement" shall mean this Deposit Agreement, as amended or supplemented from time to time. "Depositary" shall mean __________________, a ____________________, and any successor as Depositary hereunder. 7 "Depositary Shares" shall mean depositary shares of the Company, each representing an interest in a share of Stock deposited with the Depositary hereunder and evidenced by a Receipt. Each Depositary Share shall, as provided herein, represent an interest in [%], subject to adjustment as herein provided, of one share of Stock and the same proportionate interest in any and all moneys and other property received or receivable by the Depositary in respect of the Stock. "Depositary's Agent" shall mean an agent appointed by the Depositary pursuant to Section 7.05. "Depositary's Office" shall mean the principal office of the Depositary in the Borough of Manhattan, The City of New York, at which at any particular time its depositary receipt business shall be administered, which office is located, at the date of this Deposit Agreement, at _________________________________________. "Receipt" shall mean one of the depositary receipts issued hereunder, whether in definitive or temporary form. "Record Holder" as applied to a Receipt shall mean the person in whose name a Receipt is registered on the books of the Depositary maintained for such purpose. "Redemption Date" shall have the meaning ascribed to such term in Section 2.03 hereof. "Registrar" shall mean any bank or trust company which shall be appointed to register ownership and transfers of Receipts as herein provided. "Stock" shall mean shares of the Company's ____% Series __ Preferred Stock, stated value $___ per share. ARTICLE II. Form of Receipts, Deposit of Stock, Execution and Delivery, Transfer, Surrender and Redemption of Receipts SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts shall be engraved or printed or lithographed on steel-engraved borders and shall be substantially in the form set forth in Exhibit A annexed to this Deposit Agreement, with appropriate insertions, -2- 8 modifications and omissions as hereinafter provided. Pending the preparation of definitive Receipts, the Depositary, upon the written order of the Company delivered in compliance with Section 2.02, shall execute and deliver temporary Receipts which are printed, lithographed, typewritten, mimeographed or otherwise substantially of the tenor of the definitive Receipts in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the persons executing such Receipts may determine, as evidenced by their execution of such Receipts. If temporary Receipts are issued, the Company and the Depositary will cause definitive Receipts to be prepared without unreasonable delay. After the preparation of definitive Receipts, the temporary Receipts shall be exchangeable for definitive Receipts upon surrender of the temporary Receipts at an office described in the last paragraph of Section 2.02, without charge to the holder. Upon surrender for cancellation of any one or more temporary Receipts, the Depositary shall execute and deliver in exchange therefor definitive Receipts representing the same number of Depositary Shares as represented by the surrendered temporary Receipt or Receipts. Such exchange shall be made at the Company's expense and without any charge therefor to the holder. Until so exchanged, the temporary Receipts shall in all respects be entitled to the same benefits under this Deposit Agreement, and with respect to the Stock, as definitive Receipts. Receipts shall be executed by the Depositary by the manual signature of a duly authorized signatory of the Depositary; provided, that such signature may be a facsimile if a Registrar for the Receipts (other than the Depositary) shall have been appointed and such Receipts are countersigned by manual signature of a duly authorized signatory of the Registrar. No Receipt shall be entitled to any benefits under this Deposit Agreement or be valid or obligatory for any purpose unless it shall have been executed manually by a duly authorized signatory of the Depositary or, if a Registrar for the Receipts (other than the Depositary) shall have been appointed, by manual or facsimile signature of a duly authorized signatory of the Depositary and countersigned manually by a duly authorized signatory of such Registrar. Receipts executed as provided in this Section may be issued notwithstanding that any authorized signatory of the Depositary or Registrar, as the case may be, signing such Receipts shall have ceased to be such an authorized signatory at the time of issuance of such Receipts. The Depositary or, if a Registrar (other -3- 9 than the Depositary) shall have been appointed, the Registrar shall record on its books each Receipt so signed and delivered as hereinafter provided. Receipts shall be in denominations of any number of whole Depositary Shares. Receipts may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Deposit Agreement as may be required by the Depositary or required to comply with any applicable law or any regulation thereunder or with the rules and regulations of any national securities exchange upon which the Stock, the Depositary Shares or the Receipts may be listed or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Receipts are subject. Title to Depositary Shares evidenced by a Receipt which is properly endorsed, or accompanied by a properly executed instrument of transfer, shall be transferable by delivery with the same effect as in the case of a negotiable instrument; provided, however, that until transfer of a Receipt shall be registered on the books of the Depositary as provided in Section 2.04, the Depositary may, notwithstanding any notice to the contrary, treat the Record Holder thereof at such time as the absolute owner thereof for the purpose of determining the person entitled to distributions of dividends or other distributions or to any notice provided for in this Deposit Agreement and for all other purposes. SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof. Subject to the terms and conditions of this Deposit Agreement, the Company may form time to time deposit, or cause or permit to be deposited, shares of Stock under this Deposit Agreement by delivery to the Depositary of a certificate or certificates for the Stock to be deposited, properly endorsed or accompanied, in each case if required by the Depositary, by a duly executed instrument of transfer or endorsement in form reasonably satisfactory to the Depositary, together with all such certifications as may be required by the Depositary in accordance with the provisions of this Deposit Agreement, and together with a written order directing the Depositary to execute and deliver to, or upon the written order of, the person or persons specified in such order a Receipt or Receipts for the number of -4- 10 Depositary Shares representing such deposited Stock. Subject to the terms and conditions of this Deposit Agreement, shares of Stock may also be deposited hereunder in connection with the delivery of Receipts to represent distributions under Section 4.02 and upon exercise of the rights to subscribe referred to in Section 4.03. Deposited Stock shall be held by the Depositary in safekeeping at the Depositary's Office or at such other place or places as the Depositary shall determine. Upon receipt by the Depositary of a certificate or certificates for Stock deposited in accordance with the provisions of this Section, together with the other documents required as above specified, and upon recordation of the Stock on the books of the Company in the name of the Depositary or its nominee, the Depositary, subject to the terms and conditions of this Deposit Agreement, shall execute and deliver, to or upon the order of the person or persons specified in the written order delivered to the Depositary referred to in the first paragraph of this Section, a Receipt or Receipts for the number of Depositary Shares representing the Stock so deposited and registered in such name or names and in such denomination or denominations as may be requested by such person or persons or specified in such order. The Depositary shall execute and deliver such Receipt or Receipts at the Depositary's Office or such other offices, if any, as the Depositary may designate. SECTION 2.03. Redemption of Stock. Whenever the Company shall elect to redeem shares of Stock held by the Depositary in accordance with the provisions of the Certificate, the Company shall (unless otherwise agreed in writing with the Depositary) give the Depositary not less than 40 and not more than 70 days' notice of the date of such proposed redemption of Stock, the number of shares of Stock held by the Depositary to be so redeemed and the redemption price for the shares of Stock to be redeemed in accordance with Section (e) of the Certificate. On the date of such proposed redemption, provided that the Company shall then have paid in full to the Depositary the redemption price of the Stock to be redeemed (plus all other amounts referred to below), the Depositary shall redeem the Depositary Shares representing such Stock. The Depositary shall mail notice of such proposed redemption and the proposed simultaneous redemption of the number of Depositary Shares representing the Stock to be redeemed, first-class postage prepaid, not less than 30 and not more -5- 11 than 60 days prior to the date fixed for redemption of such Stock and Depositary Shares (the "Redemption Date"), to the Record Holders of the Receipts evidencing the Depositary Shares to be so redeemed, at the addresses of such Record Holders as they appear on the books of the Depositary; but neither failure to mail any such notice to one or more such holders nor any defect in any notice to one or more such holders shall affect the sufficiency of the proceedings for redemption as to other holders. Each such notice shall state: (i) the Redemption Date; (ii) the number of Depositary Shares to be redeemed and, if less than all the Depositary Shares held by any such holder are to be redeemed, the number of such Depositary Shares held by such holder to be so redeemed; (iii) the redemption price (which shall include full cumulative dividends to the Redemption Date); (iv) the place or places where Receipts evidencing Depositary Shares are to be surrendered for payment of the redemption price; and (v) that dividends in respect of the Stock represented by the Depositary Shares to be redeemed will cease to accumulate on such Redemption Date. In case less than all the outstanding Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed shall be selected by lot or pro rata (subject to rounding to avoid fractions of Depositary Shares) as may be determined by the Depositary to be equitable. Notice having been mailed by the Depositary as aforesaid, from and after the Redemption Date (unless the Company shall have failed to redeem the shares of Stock held by the Depositary to be redeemed by the Company as set forth in the Company's notice provided for in the preceding paragraph) all dividends in respect of the shares of Stock so called for redemption shall cease to accumulate, the Depositary Shares being redeemed from such proceeds shall no longer be deemed to be outstanding, all rights of the holders of Receipts evidencing such Depositary Shares (except the right to receive the redemption price plus accumulated but unpaid dividends and all money and other property, if any, payable with respect to such Depositary Shares) shall, to the extent of such Depositary Shares, cease and terminate and, upon surrender in accordance with such notice of the Receipts evidencing any such Depositary Shares (properly endorsed or assigned for transfer, if the Depositary shall so require), such Depositary Shares shall be redeemed by the Depositary at a redemption price per Depositary Share equal to ___________ (subject to adjustment as hereinafter provided) of the redemption price per share paid in respect of the shares of Stock plus all money and other property, if any, payable with respect to -6- 12 such Depositary Shares, including all amounts payable by the Company in respect of dividends which on the Redemption Date have accumulated on the shares of Stock to be so redeemed and have not theretofore been paid. If less than all the Depositary Shares evidenced by a receipt are called for redemption, the Depositary will deliver to the holder of such Receipt, without charge to such holder, upon surrender of such Receipt to the Depositary, a new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not called for redemption, together with the redemption payment. SECTION 2.04. Registration of Transfer of Receipts. Subject to the terms and conditions of this Deposit Agreement, the Depositary shall register on its books from time to time transfers of Receipts upon any surrender thereof at the Depositary's Office or at such other office or offices as may be designated by the Depositary for such purpose by the holder in person or by a duly authorized attorney, properly endorsed or accompanied by a properly executed instrument of Transfer. Thereupon the Depositary shall execute a new Receipt or Receipts evidencing the same aggregate number of Depositary Shares as those evidenced by the Receipt or Receipts surrendered and deliver such new Receipt or Receipts to or upon the order of the person entitled thereto. SECTION 2.05. Split-ups and Combinations of Receipts. Upon surrender of a Receipt or Receipts, at the Depositary's Office or at such other office or offices as it may designate for the purpose of effecting a split-up or combination of such Receipt or Receipts, by the holder in person or by its duly authorized attorney, properly endorsed or accompanied by a properly executed instrument of transfer, and subject to the terms and conditions of this Deposit Agreement, the Depositary shall execute and deliver a new Receipt or Receipts in the authorized denomination or denominations requested, evidencing the aggregate number of Depositary Shares evidenced by the Receipt or Receipts surrendered. SECTION 2.06. Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts. As a condition precedent to the execution and delivery, registration of transfer, split-up, combination, surrender or exchange of any Receipt, the Depositary, any of the -7- 13 Depositary's Agents or the Company may require (i) payment to it of a sum sufficient for the payment (or, in the event that the Depositary or the Company shall have made such payment, the reimbursement to it) of any charges or expenses payable by the holder of such Receipt pursuant to Section 5.07, (ii) the production of evidence reasonably satisfactory to it as to the identity and genuineness of any signature and (iii) compliance with such reasonable regulations, if any, as the Depositary or the Company may establish consistent with the provisions of this Deposit Agreement. The registration of transfer of Receipts may be refused and the registration of transfer, split-up, combination, surrender or exchange of outstanding Receipts may be suspended (i) during any period when the Company's register of holders of Stock is closed or (ii) if any such action is reasonably deemed necessary or advisable by the Depositary, any of the Depositary's Agents or the Company at any time or from time to time because of any requirement of law or of any government or governmental body or commission or under any provision of this Deposit Agreement. SECTION 2.07. Lost Receipts, etc. In case any Receipt shall be mutilated, destroyed, lost or stolen, the Depositary shall execute and deliver a Receipt of like form and tenor in exchange and substitution for such mutilated Receipt, or in lieu of and in substitution for such destroyed, lost or stolen Receipt, upon (i) the filing by the holder thereof with the Depositary of evidence reasonably satisfactory to the Depositary of such mutilation, destruction, loss or theft of such Receipt, of the authenticity thereof and of his or her ownership thereof and (ii) if requested by the Depositary, the furnishing of the Depositary with reasonable indemnification satisfactory to it. SECTION 2.08. Cancellation and Destruction of Surrendered Receipts. All Receipts surrendered to the Depositary or any Depositary's Agent shall be cancelled by the Depositary. Except as prohibited by applicable law or regulation, the Depositary is authorized but shall not be required to destroy all Receipts so cancelled so long as it shall deliver a certificate, signed by one of its duly authorized officers, to the Company attesting as to such destruction. -8- 14 ARTICLE III. Certain Obligations of Holders of Receipts and Warranties of the Company SECTION 3.01. Filing Proofs, Certificates and Other Information. Any holder of a Receipt may be required from time to time to file such proof of residence, or other matters or other information, to execute such certificates and to make such representations and warranties as the Depositary or the Company may reasonably deem necessary or proper. The Depositary or the Company may withhold the delivery, or delay the registration of transfer, redemption or exchange, of any Receipt or the distribution of any dividend or other distribution or the sale of any rights or of the proceeds thereof until such proof or other information is filed or such certificates are executed or such representations and warranties are made. SECTION 3.02. Payment of Taxes or Other Governmental Charges. Holders of Receipts shall be obligated to make payments to the Depositary of certain taxes and governmental charges, as provided in Section 5.07. Registration of transfer, split-up, combination, surrender or exchange of any Receipt and all money or other property, if any, represented by the Depositary Shares evidenced by such Receipt may be refused until any such payment in respect of such Receipt is made, and any dividends or other distributions may be withheld or any part of or all the Stock or other property represented by the Depositary Shares evidenced by such Receipt and not theretofore sold may be sold for the account of the holder thereof (after attempting by reasonable means to notify such holder prior to such sale), and such dividends or other distributions or the proceeds of any such sale and all money, if any, represented by the Depositary Shares evidenced by such Recepit, may be applied to any payment of such charges or taxes, the holder of such Receipt remaining liable for any deficiency. SECTION 3.03. Warranty as to Stock. The company hereby represents and warrants that the Stock, when issued, will be duly authorized, validly issued, fully paid -9- 15 and nonassessable and free and clear of any liens, claims or encumbrances. Such representation and warranty shall survive the deposit of the Stock and the issuance of Receipts. SECTION 3.04. Warranty as to Receipts. The Depositary hereby represents and warrants that the Receipts, when issued, will be validly issued, fully paid and nonassessable. Such representation and warranty shall survive the deposit of the Stock and the issuance of Receipts. ARTICLE IV. The Deposited Securities: Notices SECTION 4.01. Cash Distributions. Whenever the Depositary shall receive any cash dividend or other cash distribution on Stock, the Depositary shall, subject to Section 3.02, promptly distribute to those persons who were Record Holders of Receipts on the record date fixed pursuant to Section 4.03 such amounts of such dividend or distribution as are, as nearly as practicable, in proportion to the respective numbers of Depositary Shares evidenced by the Receipts held by such holders on such record date; provided, however, that in case the Company or the Depositary shall be required to withhold and shall withhold from any cash dividend or other cash distribution payable to a Record Holder in respect of the Stock an amount on account of taxes, the amount made available for distribution or distributed to such Record Holder in respect of Depositary Shares shall be reduced accordingly. The Depositary shall distribute or make available for distribution, as the case may be, only such amount, however, as can be distributed without attributing to any Record Holder a fraction of one cent, and any balance not so distributable shall be held by the Depositary (without liability for interest thereon) and shall be added to and be treated as part of the next sum received by the Depositary for distribution to Record Holders of Receipts then outstanding. SECTION 4.02. Distributions Other than Cash. Whenever the Depositary shall receive any distribution other than cash upon Stock, the Depositary shall, subject to Section 3.02, promptly distribute to those persons who were Record Holders of Receipts on the record date fixed pursuant to Section 4.03 such amounts of the securities or -10- 16 property received by it as are, as nearly as practicable, in proportion to the respective numbers of Depositary Shares evidenced by the Receipts held by such holders on such record date, in any manner that the Depositary may deem equitable and practicable for accomplishing such distribution. If in the opinion of the Depositary such distribution cannot be made proportionately among such Record Holders, or if for any other reason (including any requirement that the Company or the Depositary withhold an amount on account of taxes) the Depositary deems, after consultation with the Company, such distribution not to be feasible, the Depositary may, with the approval of the Company, adopt such method as it deems equitable and practicable for the purpose of effecting such distribution, including the sale (at public or private sale) of the securities or property thus received, or any part thereof, at such place or places and upon such terms as it may deem proper. The net proceeds of any such sale shall, subject to Section 3.02, be distributed or made available for distribution, as the case may be, by the Depositary to Record Holders of Receipts entitled thereto as provided by Section 4.01 in the case of a distribution received in cash. SECTION 4.03. Notice of Dividends, etc.; Fixing of Record Date for Holders of Receipts. Whenever any cash dividend or other cash distribution shall become payable or any distribution other than cash shall be made, or if rights, preferences or privileges shall at any time be offered with respect to Stock, or whenever the Depositary shall receive notice of any meeting at which holders of Stock are entitled to vote or of which holders of Stock are entitled to notice or whenever the Depositary shall receive notice of any other event as to which a record date for the Stock shall have been fixed by the Company, the Depositary shall in each such instance fix a record date (which shall be the same date as the record date fixed by the Company with respect to the Stock) for the determination of the Record Holders of Receipts who shall be entitled to receive such dividend, distribution, rights, preferences or privileges or the net proceeds of the sale thereof, or to give instructions for the exercise of voting rights at any such meeting or for the giving of any such consent, or who shall be entitled to notice of such meeting or to otherwise participate with respect to such event or for any other appropriate reasons. SECTION 4.04. Voting Rights. Upon receipt of notice of any meeting or action to be taken written consent -11- 17 at or as to which the holders of Stock are entitled to vote or consent, the Depositary shall, as soon as practicable thereafter, mail to the Record Holders of Receipts on the record date set pursuant to Section 4.03 above a notice (which notice will be prepared by the Company in its sole discretion) which shall contain (i) such information as is contained in such notice of meeting or the solicitation or notice of such consent and (ii) a statement informing the holders of Receipts that they may instruct the Depositary as to the exercise of the voting rights or the giving or refusal of any consent, as the case may be, pertaining to the amount of Stock represented by their respective Depositary Shares and a brief statement as to the manner in which such instructions may be given. Upon the written request of any Record Holder of a Receipt or Receipts on such record date, the Depositary shall endeavor insofar as practicable to vote or cause to be voted, or to give or withhold such consent (or cause the same to be given or withheld) with respect to, the maximum number of whole shares of Stock represented by the Depositary Shares evidenced by all Receipts as to which any particular instructions are received, in each case in accordance with such instructions. The Company hereby agrees to take all action which may be deemed necessary by the Depositary in order to enable the Depositary to vote such Stock or cause such Stock to be voted or to give such consent or cause such consent to be given, as the case may be. In the absence of specific instructions from the Record Holder of a Receipt, the Depositary will abstain from voting or giving consent (but, at its discretion, not from appearing at any meeting with respect to such Stock unless directed to the contrary by the Record Holders of all the Receipts) to the extent of the Stock represented by the Depositary Shares evidenced by such Receipt. SECTION 4.05. Changes Affecting Deposited Securities and Reclassifications, Recapitalizations, etc. Upon any change in par or stated value, split-up, combination or any other reclassification of the Stock or upon any recapitalization, reorganization, merger, amalgamation or consolidation affecting the Company or to which it is a party or upon the sale of all or substantially all of the Company's assets, the Depositary may in its discretion with the approval of the Company, and shall upon the instructions of the Company, which the Company hereby agrees to give, and (in either case) in such manner as the Depositary reasonably may deem equitable, (i) make such adjustments in (x) the fraction of an interest represented by one Depositary Share in one share of Stock -12- 18 and other money and other property, if any, received or receivable in respect thereof and (y) the ratio of the redemption price per Depositary Share to the redemption price of a share of Stock, in each case as may be necessary fully to reflect the effects of such change in par or stated value, split-up, combination or other reclassification of Stock, or of such recapitalization, reorganization, merger, amalgamation or consolidation or sale and (ii) treat any securities which shall be received by the Depositary in exchange for or upon conversion of or in respect of the Stock as new deposited securities under this Deposit Agreement and the Receipts then outstanding shall thereafter represent the securities so received in exchange for or upon conversion or in respect of such Stock. In any such case the Depositary may in its discretion, with the approval of the Company, execute and deliver, without charge to the holders, additional Receipts, or may call for the surrender of all outstanding Receipts to be exchanged, without charge to the holders, or new Receipts specifically describing such new deposited securities. SECTION 4.06. Inspection of Reports. The Depositary shall make available for inspection by holders of Receipts at the Depositary's Office, during normal business hours and at such other places as it may from time to time deem advisable, any reports and communications received from the Company which are received by the Depositary as the holder of stock. SECTION 4.07. Lists of Receipt Holders. Promptly upon request from time to time by the Company, the Depositary shall, at the expense of the Company, furnish to the Company a list, as of a recent date, of the names, addresses and holdings of Depositary Shares of all persons in whose names Receipts are registered on the books of the Depositary or the Registrar, as the case may be. ARTICLE V. The Depositary, the Depositary's Agents, the Registrar and the Company SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar. Until termination of this Deposit Agreement, the Depositary shall maintain at an office or agency in the Borough of Manhattan, The City of New York (which may be the -13- 19 Depositary's Office), for the execution and delivery, registration and registration of transfer, surrender, split-up, combination, redemption and exchange of Receipts and for any other purposes required by the rules of any national securities exchange upon which the Stock, the Depositary Shares or the Receipts are listed, and at the offices of the Depositary's Agents, if any, facilities for the delivery, registration of transfer, surrender and exchange of Receipts, all in accordance with the provisions of this Deposit Agreement. The Depositary shall keep books at the Depositary's Office for the registration and registration of transfer of Receipts, which books at all reasonable times shall be open for inspection by the Record Holders of Receipts; provided, that any such holder requesting to exercise such right shall certify to the Depositary that such inspection shall be for a proper purpose reasonably related to such person's interest as an owner of Depositary Shares evidenced by the Receipts. If the Receipts or the Depositary Shares evidenced thereby or the Stock represented by such Depositary Shares shall be listed on the New York Stock Exchange, the Depositary may, with the approval of the Company, appoint a Registrar for registration of such Receipts or Depositary Shares in accordance with any requirements of such Exchange. Such Registrar (which may be the Depositary if so permitted by the requirements of such Exchange) may be removed and a substitute registrar appointed by the Depositary upon the request or with the approval of the Company. If the Receipts, such Depositary Shares or such Stock are listed on one or more other stock exchanges, the Depositary will, at the request of the Company, arrange such facilities for the delivery, registration, registration of transfer, surrender and exchange of such Receipts, such Depositary Shares or such Stock as may be required by law or applicable stock exchange regulations. SECTION 5.02. Prevention of or Delay in Performance by the Depositary, the Depositary's Agents, the Registrar or the Company. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company shall incur any liability to any holder of any Receipt if by reason of any provision of any present or future law, or regulation thereunder, of the United States of America or of any other governmental authority or, with respect to the Depositary, the Depositary's Agent or the Registrar, by -14- 20 reason of any provision, present or future, of the Company's Certificate of Incorporation (including the Certificate) or by reason of any act of God or war or other circumstance beyond the control of the relevant party, the Depositary, the Depositary's Agent, the Registrar or the Company shall be prevented or forbidden from doing or performing any act or thing which the terms of this Deposit Agreement provide shall be done or performed; nor shall the Depositary, any Depositary's Agent, any Registrar or the Company incur any liability to any holder of a Receipt (i) by reason of any nonperformance or delay, caused as aforesaid, in the performance of any act or thing which the terms of this Deposit Agreement provide shall or may be done or performed, or (ii) by reason of any exercise of, or failure to exercise, any discretion provided for in this Deposit Agreement unless caused by the negligence or willful misconduct of the party charged with such exercise or failure to exercise. SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the Registrar and the Company. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company assumes any obligation or shall be subject to any liability under this Deposit Agreement to Record Holders of Receipts other than for the relevant party's negligence or willful misconduct. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Stock, the Depositary Shares or the Receipts which in the relevant party's opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all expense and liability shall be furnished. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company shall be liable for any action or any failure to act by it in reliance upon and in conformity with the written advice of legal counsel or accountants, or information from any holder of a Receipt or any other person believed by it in good faith to be competent to give such advice or information. The Depositary, any Depositary's Agent, any Registrar and the Company may each rely and shall each be protected in acting upon any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. -15- 21 The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Stock or for the manner or effect of any such vote made, as long as any such action or non-action is in good faith and without negligence. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary. The Depositary, the Depositary's Agents and any Registrar may own and deal in any class of securities of the Company and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Company and its affiliates, may loan money to the Company and its affiliates and may engage in any other business with or for the Company and its affiliates. The Depositary shall not be liable for any acts or omissions made by a successor Depositary whether in connection with a previous act or omission of the Depositary or in connection with any matter arising wholly after the removal or resignation of the Depositary, provided that the Depositary exercised its best judgment and acted without negligence and in good faith while it acted as Depositary. SECTION 5.04. Resignation and Removal of the Depositary; Appointment of Successor Depositary. The Depositary may at any time resign as Depositary hereunder by written notice of its election to do so delivered to the Company, such resignation to take effect upon the appointment of a successor Depositary and its acceptance of such appointment as hereinafter provided. The Depositary may at any time be removed by the Company by written notice of such removal delivered to the Depositary, such removal to take effect upon the appointment of a successor Depositary and its acceptance of such appointment as hereinafter provided. In case at any time the Depositary acting hereunder shall resign or be removed, the Company shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depositary which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. Every successor Depositary shall execute and -16- 22 deliver to its predecessor and to the Company an instrument in writing accepting its appointment hereunder, and thereupon such successor Depositary, without any further act or deed, shall become fully vested with all rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depositary under this Deposit Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Company, shall execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys or property held hereunder to such successor, and shall deliver to such successor a list of the Record Holders of all outstanding Receipts. Any successor Depositary shall promptly mail notice of its appointment to the Record Holders of Receipts. If the instrument of acceptance by a successor Depositary required by this Section 5.04 shall not have been delivered to the Depositary within 60 days after the delivery of the notice of resignation or removal, the Depositary may petition any court of competent jurisdiction for the appointment of a successor Depositary. Any corporation into or with which the Depositary may be merged, consolidated or converted shall be the successor of such Depositary without the execution or filing of any document or any further act. Such successor Depositary may authenticate the Receipts in the name of the predecessor Depositary or in the name of the successor Depositary. SECTION 5.05. Corporate Notices and Reports. The Company agrees that it will deliver to the Depositary, and the Depositary will, promptly after receipt thereof, transmit to the Record Holders of Receipts, in each case at the address recorded in the Depositary's books, copies of all notices and reports (including, without limitation, financial statements) required by law, by rules of any national securities exchange upon which the Stock, the Depositary Shares or the Receipts are listed or by the Company's Certificate of Incorporation (including the Certificate) to be furnished by the Company to holders of Stock, Depositary Shares or Receipts. Such transmission will be at the Company's expense and the Company will provide the Depositary, on or prior to the first date on which the Company gives or mails such documents, with such number of copies of such documents as the Depositary may reasonably request or as may be necessary to effect such transmission. In addition, the Depositary will transmit to -17- 23 the Record Holders of Receipts (at the Company's expense) such other documents as may be requested by the Company. SECTION 5.06. Indemnification. (a) The Company shall indemnify the Depositary, any Depositary's Agent and any Registrar against, and hold each of them harmless from, any loss, liability or expense (including all legal costs and expenses relating thereto, including reasonable attorneys' fees) which may arise out of (1) acts performed or omitted in connection with this Deposit Agreement and the Receipts (i) by the Depositary, any Registrar or any of their respective agents (including any Depositary's Agent), except for any liability arising out of negligence, bad faith or intentional misconduct on the respective parts of any such person or persons, or (ii) by the Company or any of its agents, or (2) the offer, sale or registration of the Receipts or the Stock pursuant to the provisions hereof. (b) The Depositary shall indemnify the Company against, and hold it harmless from, any loss, liability or expense (including all legal costs and expenses relating thereto, including reasonable attorneys' fees) arising from demands, actions, suits or proceedings (civil, criminal, administrative or investigative) that may arise out of the acts performed or omitted by the Depositary or Depositary's Agents due to negligence, bad faith or intentional misconduct. (c) The indemnification provided for in this Section for the Company, the Depositary, and any Depositary's Agent shall extend to their respective officers, directors, stockholders, employees and agents, and shall survive the termination of this Agreement and, as to the Depositary, the appointment of a successor thereto in any function. (d) Notwithstanding paragraphs (a), (b) and (c) above, in order to induce the New York Stock Exchange, Inc. (the "NYSE") to permit the Depositary to act as transfer agent pursuant to NYSE Rule 496, the Company will cause to be executed a Letter of Guaranty whereby the Company will guaranty, indemnify and hold harmless all persons doing business with the Depositary as a NYSE transfer agent and will pay all charges or costs incurred by the Depositary acting in its capacity as a NYSE transfer agent. The Letter of Guaranty will remain in force until effective cancellation by the Company, which cancellation will not -18- 24 become effective until thirty (30) days after notice of such cancellation is given to the Secretary of the NYSE. SECTION 5.07. Charges and Expenses. The Company shall pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements or upon the deposit of any new securities as contemplated by clause (ii) of the first sentence of Section 4.05. All other transfer and other taxes and governmental charges with respect to any Depositary Shares shall be at the expense of the respective holders thereof. The Company shall pay to the Depositary such compensation for services rendered by it hereunder and shall pay all charges and expenses of the Depositary and of each Depositary's Agent and Registrar (if any), all as the Company and the Depositary shall from time to time agree in writing, except that, if, at the request of a holder of a Receipt or Receipts, the Depositary incurs charges or expenses other than those arising from the performance of duties and obligations that the Depositary is required to perform under this Deposit Agreement, such holder will be liable for such charges and expenses. All charges and expenses of the Depositary and any Depositary's Agent hereunder and of any Registrar (including, in each case, fees and expenses of counsel) incident to the performance of their respective obligations hereunder will be paid upon consultation and agreement between the Depositary and the Company as to the amount and nature of such charges and expenses. The Depositary shall present its statement for charges and expenses to the Company once every three months or at such other intervals as the Company and the Depositary may agree. SECTION 5.08. Retention of Depositary Documents. Subject to Section 2.08, the Depositary is authorized to destroy those documents, records, bills and other data compiled during the term of this Deposit Agreement at the times permitted by law but in no event less than two years unless the Company requests that such papers be retained for a longer period or turned over to the Company or to a successor Depositary. ARTICLE VI. Amendment and Termination SECTION 6.01. Amendment. The form of the Receipts and any provisions of this Deposit Agreement may -19- 25 at any time and from time to time be amended by agreement between the Company and the Depositary in any respect which they may deem necessary or desirable; provided, however, that no such amendment which imposes or increases any fees, taxes or charges upon holders of Depositary Shares or Receipts or which materially prejudices any substantial existing right of such holders of Depositary Shares or Receipts shall be effective unless such amendment shall have been approved by the Record Holders of at least a majority of the Depositary Shares then outstanding. Notwithstanding the foregoing, no such amendment may impair the right of any holder of Depositary Shares or Receipts to receive any moneys or other property to which such holder may be entitled under the terms of such Receipts or this Deposit Agreement at the times and in the amount and manner provided for herein. Every holder of an outstanding Receipt at the time any such amendment becomes effective shall be deemed, by continuing to hold such Receipt, to consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby. SECTION 6.02. Termination. This Deposit Agreement may be terminated by the Company or the Depositary only after (i) all outstanding Depositary Shares shall have been redeemed pursuant to Section 2.03 and all accumulated and unpaid dividends on the Stock represented by Depositary Shares, together with all other moneys and property, if any, to which holders of Depositary Receipts are entitled under the Receipts and this Deposit Agreement, shall have been paid or distributed as provided herein or provision therefor duly made or (ii) there shall have been made a final distribution in respect of the Stock in connection with any liquidation, dissolution or winding up of the Company and such distribution shall have been distributed to the holders of Depositary Shares pursuant to Section 4.01 or 4.02, as applicable. Upon the termination of this Deposit Agreement, the Company shall be discharged from all obligations under this Deposit Agreement except for its obligations to the Depositary, any Depositary's Agent and any Registrar under Sections 5.06 and 5.07. -20- 26 ARTICLE VII. Miscellaneous SECTION 7.01. Counterparts. This Deposit Agreement may be executed in any number of counterparts, and by each of the parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed an original, but all such counterparts taken together shall constitute one and the same instrument. SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement is for the exclusive benefit of the parties hereto, and their respective successors hereunder, and shall not be deemed to give any legal or equitable right, remedy or claim to any other person whatsoever. SECTION 7.03. Invalidity of Provisions. In case any one or more of the provisions contained in this Deposit Agreement or in the Receipts should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby. SECTION 7.04. Notices. Any and all notices to be given to the Company hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail or by telecopy confirmed by letter, addressed to the Company at 180 Maiden Lane, New York, New York 10038, Attention: the Treasurer, or at any other address of which the Company shall have notified the Depositary in writing. Any and all notices to be given to the Depositary hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail or by telecopy confirmed by letter, addressed to the Depositary at the Depositary's Office, at _________________________________________, or at any other address of which the Depositary shall have notified the Company in writing. Any and all notices to be given to any Record Holder of a Receipt hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail or by telecopy confirmed by letter, addressed to such Record Holder at the -21- 27 address of such Record Holder as it appears on the books of the Depositary, or if such holder shall have filed with the Depositary a written request that notices intended for such holder be mailed to some other address, at the address designated in such request. Delivery of a notice sent by mail or by telecopy shall be deemed to be effected at the time when a duly addressed letter containing the same (or a duly addressed letter containing a confirmation thereof in the case of a telecopy message) is deposited, postage prepaid, in a post office letter box. The Depositary or the Company may, however, act upon any telecopy message received by it from the other or from any holder of a Receipt, notwithstanding that such telecopy message shall not subsequently be confirmed by letter or as aforesaid. SECTION 7.05. Depositary's Agents. The Depositary may from time to time with the prior consent of the Company appoint Depositary's Agents to act in any respect for the Depositary for the purposes of this Deposit Agreement and may at any time appoint additional Depositary's Agents and vary or terminate the appointment of such Depositary's Agents. SECTION 7.06. Holders of Receipts Are Parties. The holders of Receipts from time to time shall be deemed to be parties to this Deposit Agreement and shall be bound by all of the terms and conditions hereof and of the Receipts by acceptance of delivery thereof. SECTION 7.07. Governing Law. THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. SECTION 7.08. Inspection of Deposit Agreement. Copies of this Deposit Agreement shall be filed with the Depositary and the Depositary's Agents and shall be open to inspection during business hours at the Depositary's Office and the respective offices of the Depositary's Agents, if any, by any holder of a Receipt. SECTION 7.09. Headings. The headings of articles and sections in this Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto have been inserted for convenience only and are not to be regarded as a part of this Deposit Agreement or the Receipts or to have -22- 28 any bearing upon the meaning or interpretation of any provision contained herein or in the Receipts. IN WITNESS WHEREOF, the Company and the Depositary have duly executed this Deposit Agreement as of the day and year first above set forth, and all holders of Receipts shall become parties hereto by and upon acceptance by them of delivery of Receipts issued in accordance with the terms hereof. ASARCO INCORPORATED By: ------------------------- Name: Title: [ ] By: ------------------------- Name: Title: -23- 29 EXHIBIT A FORM OF DEPOSITARY RECEIPT DEPOSITARY RECEIPT FOR DEPOSITARY SHARES EACH REPRESENTING _____________ INTEREST (SUBJECT TO ADJUSTMENT) IN A SHARE OF PREFERRED STOCK, ___________________ ----------------------------------- OF ASARCO INCORPORATED (Incorporated under the laws of the State of New Jersey) ----------------------------------- No. _____________________ EACH DEPOSITARY SHARE REPRESENTS A _______ INTEREST (SUBJECT TO ADJUSTMENT) IN A SHARE OF ____________ STOCK, ____________________________ ____________________________ 1. ______________________, a _________________ corporation, as Depositary (the "Depositary"), hereby certifies that ____________________________________ is the registered owner of - ------------------- Depositary Shares ("Depositary Shares"), each Depositary Share representing a ________________ (as such fraction may from time to time be adjusted as provided in the Deposit Agreement, as defined below) interest in a share __________________________________________________ (the "Stock") of Asarco Incorporated, a corporation duly organized and existing under the laws of the State of New Jersey (the "Company") deposited with, and held by, the Depositary. The rights, preferences and limitations of the Stock are set forth in the Certificates of Amendment adopted by the Company's Board of Directors (the "Authorizing Resolutions"), copies of which are on file at the Depositary's Office at ________________________________. 2. The Deposit Agreement. Depositary Receipts (the "Receipts"), of which this Receipt is one, are made 30 EXHIBIT A Page 2 available upon the terms and conditions set forth in the Deposit Agreement, dated as of __________ ____, 1994 (the "Deposit Agreement"), among the Company, the Depositary and all holders from time to time of Receipts. The Deposit Agreement (copies of which are on file at the Depositary's Office) sets forth the rights of holders of Receipts and the rights and duties of the Depositary in respect of the Stock deposited, and any and all money and other property from time to time held thereunder. The statements made on the face and the reverse of this Receipt are summaries of certain provisions of the Deposit Agreement and are subject to the detailed provisions thereof, to which reference is hereby made. The holder of this Receipt from time to time shall be deemed to be a party to the Deposit Agreement and shall be bound by, and entitled to all of the rights and benefits under, all the terms and conditions hereof and of the Deposit Agreement by acceptance of delivery of this Receipt. Unless otherwise expressly herein provided, all defined terms shall have the meanings ascribed thereto in the Deposit Agreement. 3. Redemption. Whenever the Company shall be permitted and shall elect, under the Certificate of Amendment relating to the Stock (the "Certificate"), to redeem shares of the Stock held by the Depositary, the Company shall (unless otherwise agreed with the Depositary) give the Depositary not less than 40 and not more than 70 days' notice of the date of such proposed redemption, the number of shares of Stock held by the Depositary to be so redeemed and the redemption price for the shares of Stock to be redeemed. The Depositary shall mail notice of such proposed redemption and the proposed simultaneous redemption of the corresponding Depositary Shares not less than 30 and not more than 60 days prior to the date fixed for redemption (the "Redemption Date") to the Record Holders of Receipts evidencing the Depositary Shares to be redeemed. Each such notice shall state: (a) the Redemption Date; (b) the number of Depositary Shares to be redeemed and, if less than all the Depositary Shares held by any such holder are to be redeemed, the number of such Depositary Shares held by such holder to be so redeemed; (c) the redemption price (which shall include full cumulative dividends to the Redemption Date); (d) the place or places where Receipts evidencing Depositary Shares are to be surrendered for payment of the redemption price; and 31 EXHIBIT A Page 3 (e) that dividends in respect of the Stock represented by the Depositary Shares to be redeemed will cease to accumulate on such Redemption Date. In case less than all the outstanding Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed shall be selected by lot or pro rata (subject to rounding to avoid fractions of Depositary Shares) as may be determined by the Depositary to be equitable. Notice having been mailed by the Depositary as aforesaid, from and after the Redemption Date (unless the Company shall have failed to redeem the shares of Stock held by the Depositary to be redeemed by the Company as set forth in the Company's notice), all dividends in respect of the shares of Stock so called for redemption shall cease to accumulate, the Depositary Shares being redeemed from such proceeds shall no longer be deemed outstanding and all rights of the holders of Receipts evidencing such Depositary Shares (except the right to receive the redemption price, plus accumulated but unpaid dividends plus all other moneys and property payable with respect to such Depositary Shares) shall, to the extent of such Depositary Shares, cease and terminate and, upon surrender in accordance with such redemption notice of the Receipts representing any such Depositary Shares (properly endorsed or assigned for transfer, if the Depositary shall so require), such Depositary Shares shall be redeemed by the Depositary at the redemption price per Depositary Share equal to ____________ (subject to adjustment as provided below) of the redemption price per share paid in respect of the shares of Stock plus all money and other property, if any, payable with respect to such Depositary Shares, including all amounts paid by the Company in respect of dividends which on the Redemption Date have accumulated on the shares of Stock to be so redeemed and have not theretofore been paid. If less than all the Depositary Shares evidenced by this Receipt are called for redemption, the Depositary will deliver to the holder of this Receipt, without charge to such holder, upon surrender of this Receipt to the Depositary, together with the redemption payment, a new Receipt evidencing the Depositary Shares evidenced by this Receipt and not called for redemption. 4. Transfers, Split-ups, Combinations. This Receipt is transferable on the books of the Depositary upon 32 EXHIBIT A Page 4 surrender of this Receipt to the Depositary, properly endorsed or accompanied by a properly executed instrument of transfer, and upon such transfer the Depositary shall execute a new Receipt or Receipts to or upon the order for the person entitled thereto, as provided in the Deposit Agreement. This Receipt may be split into other Receipts or combined with other Receipts into one Receipt, representing the same aggregate number of Depositary Shares as the Receipt or Receipts surrendered, all in the manner specified in the Deposit Agreement. 5. Suspension of Delivery, Transfer, etc. The registration of transfer, split-up, combination, surrender or exchange of this Receipt may be suspended (a) during any period when the Company's register of holders of Stock is closed or (b) if any such action is reasonably deemed necessary or advisable by the Depositary, any of the Depositary's Agents or the Company at any time or from time to time because of any requirement of law or of any government or governmental body or commission or under any provision of the Deposit Agreement. 6. Payment of Taxes or Other Governmental Charges. If any tax (including transfer taxes, if any) or other governmental charge shall become payable by or on behalf of the Depositary with respect to this Receipt, such tax or governmental charge shall be payable by the holder hereof; provided, however, that the holder hereof shall not be required to pay any such transfer or other tax or other governmental charge arising solely from the existence of the depositary arrangements or upon the deposit of any new securities as contemplated by clause (ii) of the first sentence of Section 4.05 of the Deposit Agreement. Registration of transfer, split-up, combination, surrender or exchange of this Receipt and all money or other property, if any, represented by the Depositary Shares evidenced by this Receipt may be refused until such payment is made, and any dividends or other distributions may be withheld or any part of or all the Stock or other property represented by the Depositary Shares evidenced by this Receipt and not theretofore sold may be sold for the account of the holder hereof (after attempting by reasonable means to notify such holder prior to such sale), and such dividends or other distributions or the proceeds of any such sale and all money represented by the 33 EXHIBIT A Page 5 Depositary Shares evidenced by this Receipt may be applied to any payment of such tax or charge, the holder of this Receipt remaining liable for any deficiency. 7. Warranty by Company. The Company has warranted that the Stock, when issued, will be duly authorized, validly issued, fully paid and nonassessable and free and clear of any liens, claims or encumbrances. 8. Amendment. The form of this Receipt and any provisions of the Deposit Agreement may at any time and from time to time be amended by agreement between the Company and the Depositary in any respect which they may deem necessary or desirable; provided, however, that no such amendment which imposes or increases any fees, taxes or charges upon holders of Depositary Shares or Receipts or which materially prejudices any substantial existing right of such holders of Depositary Shares or Receipts shall be effective unless such amendment shall have been approved by the Record Holders of at least a majority of the Depositary Shares then outstanding. Notwithstanding the foregoing, no such amendment may impair the right of any holder of Depositary Shares or Receipts to receive any moneys or other property to which such holder may be entitled under the terms of the Deposit Agreement at the times and in the amount and manner provided for therein. The holder of this Receipt at the time any such amendment so becomes effective shall be deemed, by continuing to hold this Receipt, to consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby. 9. Charges of Depositary. The Company will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements or upon the deposit of any new securities as contemplated by clause (ii) of the first sentence of Section 4.05 of the Deposit Agreement. All other transfer and other taxes and governmental charges with respect to any Depositary Shares shall be at the expense of the respective holders thereof. The Company shall pay to the Depositary such compensation for services rendered by it pursuant to the terms of the Deposit Agreement and shall pay all charges and expenses of the Depositary and of each Depositary's Agent and Registrar (if any), all as the Company and the Depositary shall from time to time agree in 34 EXHIBIT A Page 6 writing, except that, if, at the request of a holder of a Receipt or Receipts, the Depositary incurs charges or expenses other than those arising from the performance of duties and obligations that the Depositary is required to perform under the Deposit Agreement, such holder will be liable for such charges and expenses. All charges and expenses of the Depositary and any Depositary's Agent and of any Registrar (including, in each case, fees and expenses of counsel) will be paid upon consultation and agreement between the Depositary and the Company. 10. Title to Receipts. This Receipt (and the Depositary Shares evidenced hereby), when properly endorsed or accompanied by a properly executed instrument of transfer, is transferable by delivery with the same effect as in the case of a negotiable instrument; provided, however, that until transfer of this Receipt shall be registered on the books of the Depositary, the Depositary may, notwithstanding any notice to the contrary, treat the Record Holder hereof at such time as the absolute owner hereof for the purpose of determining the person entitled to distributions of dividends or other distributions or to any notice provided for herein or in the Deposit Agreement and for all other purposes. 11. Dividends and Distributions. Whenever the Depositary receives any cash dividend or other cash distribution on Stock, the Depositary will, subject to the provisions of Section 6 above, promptly distribute to those persons who were Record Holders of Receipts on the record date fixed pursuant to Section 12 such amounts of such dividend or distribution as are, as nearly as practicable, in proportion to the respective numbers of Depositary Shares evidenced by the Receipts held by such holders on such record date; provided, however, that the amount distributed will be reduced by any amounts required to be withheld by the Company or the Depositary on account of taxes. The Depositary shall distribute or make available for distribution, as the case may be, only such amount, however, as can be distributed without attributing to any Record Holder a fraction of one cent, and any balance not so distributable shall be applied as provided in Section 4.01 of the Deposit Agreement. Other distributions received on the Stock and other rights, preferences or privileges offered by the Company will be distributed or 35 EXHIBIT A Page 7 made available to holders of Receipts as provided in the Deposit Agreement. 12. Fixing of Record Date. Whenever any cash dividend or other cash distribution shall become payable or any distribution other than cash shall be made, or if rights, preferences or privileges shall at any time be offered with respect to Stock, or whenever the Depositary shall receive notice of any meeting at which holders of Stock are entitled to vote or of which holders of Stock are entitled to notice, or whenever the Depositary shall receive notice of any solicitation of consents from holders of Stock or in the case of any other event as to which a record date for the Stock shall have been fixed by the Company, the Depositary shall in each such instance fix a record date (which shall be the record date fixed by the Company with respect to the Stock) for the determination of the Record Holders of Receipts who shall be entitled to receive such dividend, distribution, rights, preferences or privileges or the net proceeds of the sale thereof, or to give instructions for the exercise of voting rights at any such meeting or for the giving of any such consent, or who shall be entitled to notice of such meeting or to otherwise participate with respect to such event. 13. Voting Rights. Upon receipt of notice of any meeting or action to be taken by written consent at or as to which the holders of Stock are entitled to vote or consent, the Depositary shall, as soon as practicable thereafter, mail to the Record Holders of Receipts on the record date set pursuant to Section 12 above a notice (which notice shall be prepared by the Company in its sole discretion) which shall contain (i) such information as is contained in such notice of meeting or the solicitation or notice of such consent and (ii) a statement informing the holders of Receipts that they may instruct the Depositary as to the exercise of the voting rights or the giving or refusal of any consent, as the case may be, pertaining to the amount of Stock represented by their respective Depositary Shares a brief statement as to the manner in which such instructions may be given. Upon the written request of any Record Holder of a Receipt or Receipts on such record date, the Depositary shall endeavor insofar as practicable to vote or cause to be voted, or to give or withhold such consent (or cause the same to be given or 36 EXHIBIT A Page 8 withheld) with respect to, the maximum number of whole shares of Stock represented by the Depositary Shares evidenced by all Receipts as to which any particular instructions are received, in each case in accordance with the instructions set forth in such request. In the absence of specific instructions from the holder of a Receipt, the Depositary will abstain from voting or giving consent (but, at its discretion, not from appearing at any meeting with respect to such Stock unless directed to the contrary by the holders of all the Receipts) to the extent of the Stock represented by the Depositary Shares evidenced by such Receipt. 14. Changes Affecting Deposited Securities. Upon any change in par or stated value, split-up, combination or any other reclassification of the Stock or upon any recapitalization, reorganization, merger, amalgamation or consolidation affecting the Company or to which it is a party or upon the sale of all or substantially all of the Company's assets, the Depositary may in its discretion with the approval of the Company (and shall upon the instructions of the Company), and in such manner as the Depositary reasonably may deem equitable, (i) make such adjustments in (a) the fraction of an interest represented by one Depositary Share in one share of Stock and other money and other property, if any, received or receivable in respect thereof and (b) the ratio of the redemption price per Depositary Share to the redemption price of a share of Stock, in each case as may be necessary fully to reflect the effects of such change in par or stated value, split-up, combination or other reclassification of Stock, or of such recapitalization, reorganization, merger, amalgamation or consolidation or sale and (ii) treat any securities which shall be received by the Depositary in exchange for or upon conversion or in respect of the Stock as new deposited securities under the Deposit Agreement and the Receipts then outstanding shall thereafter represent the securities so received in exchange for or upon conversion or in respect of such Stock. In any such case the Depositary may in its discretion, with the approval of the Company, execute and deliver, without charge to the holders, additional Receipts, or may call for the surrender of all outstanding Receipts to be exchanged, without charge to the holders, for new Receipts specifically describing such new deposited securities. 37 EXHIBIT A Page 9 15. Liability and Obligations of the Depositary, the Depositary's Agents or the Company. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company assumes any obligation or shall be subject to any liability under the Deposit Agreement to holders of Receipts other than for the relevant party's negligence or willful misconduct. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company shall incur any liability to any holder of any Receipt if by reason of any provision of any present or future law, or regulation thereunder, of the United States of America or of any other governmental authority or, with respect to the Depositary, any Depositary's Agent, or the Registrar by reason of any provision, present or future, of the Company's Certificate of Incorporation (including the Certificate) or by reason of any act of God or war or other circumstance beyond the control of the relevant party, the Depositary, any Depositary's Agent, the Registrar or the Company shall be prevented or forbidden from doing or performing any act or thing which the terms of the Deposit Agreement provide shall be done or performed; nor shall the Depositary, any Depositary's Agent, any Registrar or the Company incur any liability to any holder of a Receipt (i) by reason of any nonperformance or delay, caused as aforesaid, in the performance of any act or thing which the terms of the Deposit Agreement provide shall or may be done or performed, or (ii) by reason of any exercise of, or failure to exercise, any discretion provided for in the Deposit Agreement unless caused by the negligence or willful misconduct of the party charged with such exercise or failure to exercise. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Stock, the Depositary Shares or the Receipts, which in the relevant party's opinion may involve it in expense or liability, unless indemnity reasonably satisfactory to it against all expense and liability shall be furnished. The Deposit Agreement contains various other exculpatory, indemnification and related provisions, to which reference is hereby made. 16. Resignation and Removal of Depositary. The Depositary may at any time (i) resign by written notice of its election to do so delivered to the Company, such 38 EXHIBIT A Page 10 resignation to take effect upon the appointment of a successor Depositary and its acceptance of such appointment, or (ii) be removed by the Company by written notice of such removal delivered to the Depositary, such removal to take effect upon the appointment of a successor Depositary and its acceptance of such appointment. 17. Termination of Deposit Agreement. The Deposit Agreement may be terminated by the Company or the Depositary only after (i) all outstanding Depositary Shares shall have been redeemed and all accumulated and unpaid dividends on the Stock represented by Depositary Shares, together with all other moneys and property, if any, to which holders of Depositary Shares are entitled under the terms of the Receipts and the Deposit Agreement, shall have been paid or distributed as provided in the Deposit Agreement or provision therefor duly made or (ii) there shall have been made a final distribution in respect of the Stock in connection with any liquidation, dissolution or winding up of the Company and such distribution shall have been distributed to the holders of Depositary Shares pursuant to the terms of the Deposit Agreement. Upon the termination of the Deposit Agreement, the Company shall be discharged from all obligations thereunder except for its obligations to the Depositary, any Depositary's Agent and any Registrar with respect to indemnification, charges and expenses. 18. Governing Law. THIS RECEIPT AND THE DEPOSIT AGREEMENT AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. This Receipt shall not be entitled to any benefits under the Deposit Agreement or be valid or obligatory for any purpose unless this Receipt shall have been executed manually by a duly authorized signatory of the Depositary or, if a Registrar for the Receipts (other than the Depositary) shall have been appointed, by facsimile by the Depositary provided this Receipt is countersigned manually by the signature of a duly authorized signatory of such Registrar. 39 EXHIBIT A Page 11 The corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Dated: [ ] as Depositary and Registrar By --------------------------- Authorized Officer EX-4.3 5 FORM OF COMMON STOCK WARRANT AGREEMENT 1 EXHIBIT 4.3 FORM OF COMMON STOCK WARRANT AGREEMENT ----------------------------------------------------------- ASARCO INCORPORATED and --------------------- As Warrant Agent WARRANT AGREEMENT Dated as ------------------, ---- ----------------------------------------------------------- 2 THIS WARRANT AGREEMENT, dated as of ______________, ____, between ASARCO Incorporated, a corporation duly organized and existing under the laws of the State of New Jersey (the "Company") and _______________, a [corporation] [national banking association] organized and existing under the laws of ______________, as warrant agent (herein called the "Warrant Agent"). WHEREAS, the Company proposes to sell [If offered securities and warrants -- [title of offered securities being offered] (the "Offered Securities") with] warrant certificates (such warrant certificates and other warrant certificates issued pursuant to this Agreement herein called the "Warrant Certificates") evidencing one or more warrants (the "Warrants" or, individually, a "Warrant") representing the right to purchase shares of common stock of the Company, without par value (the "Common Stock"); and WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, exchange, exercise and replacement of the Warrant Certificates, and in this Agreement wishes to set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which they may be issued, exchanged, exercised and replaced. NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows: ARTICLE I. ISSUANCE, EXECUTION AND COUNTERSIGNATURE OF WARRANT CERTIFICATES Section 1.01 Issuance of Warrant Certificates. [If Warrants alone -- Upon issuance, each Warrant Certificate shall evidence one or more Warrants.] [If Offered Securities and Warrants -- Warrant Certificates shall be initially issued in units with the Offered Securities and shall not be separately transferable [before ____________, ____ (the 3 Page 2 "Detachable Date"]. Each Warrant Certificate included in each such unit shall evidence an aggregate of ___________ Warrants.] Each Warrant evidenced thereby shall represent the right, subject to the provisions contained herein and therein, to purchase ___ share[s] of Common Stock. Section 1.02 Form of Warrant Certificates. The Warrant Certificates (including the Form[s] of Exercise and Assignment to be set forth on the reverse thereof) shall be in substantially the form set forth in Exhibit A hereto, shall be printed, lithographed or engraved on steel engraved borders (or in any other manner determined by the officers executing such Warrant Certificates, as evidenced by their execution of such Warrant Certificates) and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on which the Warrant Certificates may be listed or as may, consistently herewith, be determined by the officers executing such Warrant Certificates, as evidenced by their execution of the Warrant Certificates. Section 1.03 Execution and Countersignature of Warrant Certificates. The Warrant Certificates shall be executed on behalf of the Company by its Chairman of the Board, President, Chief Financial Officer or its Treasurer attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Warrant Certificates may be manual or facsimile. Warrant Certificates evidencing the right to purchase a number of shares of Common Stock having an aggregate value not exceeding $________ (except as provided in Sections 1.04, 2.03(c), 4.01 and 4.02) may be executed by the Company and delivered to the Warrant Agent upon the execution of this Warrant Agreement or from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates duly executed on behalf of the Company, authenticate Warrant Certificates evidencing Warrants representing the right to purchase a number of shares of Common Stock having an aggregate value not exceeding $____________ and shall deliver such Warrant Certificates to or upon the order of the Company. Subsequent to such original issuance of the Warrant Certificates, the Warrant 4 Page 3 Agent shall authenticate a Warrant Certificate only if the Warrant Certificate is issued in exchange or substitution for one or more previously authenticated Warrant Certificates or in connection with their transfer, as hereinafter provided. Each Warrant Certificate shall be dated the date of its authentication by the Warrant Agent. No Warrant Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been authenticated by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed by the Company shall be conclusive evidence, and the only evidence, that the Warrant Certificate so authenticated has been duly issued hereunder. Warrant Certificates bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Warrant Certificates or did not hold such offices at the date of such Warrant Certificates. Section 1.04 Temporary Warrant Certificates. Pending the preparation of definitive Warrant Certificates, the Company may execute, and upon the order of the Company the Warrant Agent shall authenticate and deliver, temporary Warrant Certificates which are printed, lithographed, typewritten, mimeographed or otherwise produced substantially of the tenor of the definitive Warrant Certificates in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Warrant Certificates may determine, as evidenced by their execution of such Warrant Certificates. If temporary Warrant Certificates are issued, the Company will cause definitive Warrant Certificates to be prepared without unreasonable delay. After the preparation of definitive Warrant Certificates, the temporary Warrant Certificates shall be exchangeable for definitive Warrant Certificates upon surrender of the temporary Warrant 5 Page 4 Certificates at the corporate trust office of the Warrant Agent [or ___], without charge to the Holder (as defined in Section 1.06 below). Upon surrender for cancellation of any one or more temporary Warrant Certificates the Company shall execute and the Warrant Agent shall authenticate and deliver in exchange therefor definitive Warrant Certificates representing the same aggregate number of Warrants. Until so exchanged, the temporary Warrant Certificates shall in all respects be entitled to the same benefits under this Agreement as definitive Warrant Certificates. Section 1.05 Payment of Taxes. The Company will pay all stamp taxes and other duties, if any, to which, under the laws of the United States of America or any State or political subdivision thereof, this Agreement or the original issuance of the Warrant Certificates may be subject. Section 1.06 Definition of Holder. The term "Holder" as used herein shall mean [If Offered Securities and Warrants which are not immediately detachable -- Prior to the Detachable Date, the registered owner of the Offered Security to which such Warrant Certificate was initially attached, and, after such Detachable Date,] the person in whose name at the time such Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose pursuant to Section 4.01. [If Offered Securities and Warrants which are not immediately detachable -- Prior to the Detachable Date, the Company will, or will cause the registrar of the Offered Securities to make available to the Warrant Agent current information as to Holders of the Offered Securities.] ARTICLE II. WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS Section 2.01 Warrant Price.1/ During the period from ________ ____ through and including ___________, ____ each Warrant shall entitle the Holder thereof, subject to the provisions of this Agreement, to purchase from the Company __________________________________ 1/ Complete and modify the provisions of this Section as appropriate to reflect the exact terms of the Warrants. 6 Page 5 ____ share[s] of Common Stock at the exercise price of $__________. During the period from _________, __ __ through and including ____________, ____ , each Warrant shall entitle the Holder thereof, subject to the provisions of this Agreement, to purchase from the Company ____ share[s] of Stock at the exercise price of $______. Such exercise price of each Warrant is referred to in this Agreement as the "Exercise Price." Section 2.02 Duration of Warrants. Any Warrant evidenced by a Warrant Certificate may be exercised at any time, as specified herein, on or after [the date thereof] [_________, ____] and at or before 5:00 p.m. New York City time on __________, ____ (the "Expiration Date"). Each Warrant not exercised at or before 5:00 p.m. New York City time on the Expiration Date shall become void, and all rights of the Holder of the Warrant Certificate evidencing such Warrant under this Agreement or otherwise shall cease. Section 2.03 Exercise of Warrants. (a) During the period specified in Section 2.02, any whole number of Warrants may be exercised by surrendering the Warrant Certificate evidencing such Warrants at the place or at the places set forth in the Warrant Certificate, with the purchase form set forth in the Warrant Certificate duly executed, accompanied by payment in full, in lawful money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds], of the Exercise Price for each Warrant exercised. The date on which payment in full of the Exercise Price for a Warrant and the duly executed and completed Warrant Certificate are received by the Warrant Agent shall be deemed to be the date on which such Warrant is exercised. The Warrant Agent shall deposit all funds received by it as payment for the exercise of Warrants to the account of the Company maintained with it for such purpose and shall advise the Company by telephone at the end of each day on which such a payment is received of the amount so deposited to its account. The Warrant Agent shall promptly confirm such telephonic advice to the Company in writing. (b) The Warrant Agent shall from time to time, as promptly as practicable after the exercise of any Warrants in 7 Page 6 accordance with the terms and conditions of this Agreement and the Warrant Certificates, advise the Company of (i) the number of Warrants so exercised, (ii) the instructions of each Holder of the Warrant Certificates evidencing such Warrants with respect to delivery of the certificate or certificates representing shares of Common Stock to which such Holder is entitled upon such exercise, and instructions of such Holder as to delivery of Warrant Certificates evidencing the balance, if any, of the Warrants remaining after such exercise, and (iii) such other information as the Company shall reasonably require. (c) As soon as practicable after the exercise of any Warrants, the Company shall issue, to or upon the order of the Holder of the Warrant Certificate evidencing such Warrants, a certificate or certificates representing the number of shares of Common Stock to which such Holder is entitled in such name or names as may be directed by such Holder; and, if fewer than all of the Warrants evidenced by such Warrant Certificate were exercised, the Company shall execute and an authorized officer of the Warrant Agent shall manually authenticate and deliver a new Warrant Certificate evidencing the number of Warrants remaining unexercised. (d) The Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer involved in the issuance of the Common Stock; and in the event that any such transfer is involved, the Company shall not be required to issue or deliver any shares of Common Stock until such tax or other charge shall have been paid or it has been established to the Company's satisfaction that no such tax or other charge is due. Section 2.04 Reservation of Shares. For the purpose of enabling it to satisfy any obligation to issue shares of Common Stock upon exercise of Warrants, the Company will at all times through 5:00 p.m. New York City time on the Expiration Date, reserve and keep available, free from preemptive rights and out of its aggregate authorized but unissued shares of Common Stock, the number of shares deliverable upon the exercise of all outstanding Warrants. 8 Page 7 ARTICLE III. OTHER TERMS OF WARRANTS Section 3.01 Call of Warrants by the Company.2/ [If Warrants issued hereunder are callable by the Company -- The Company shall have the right to call and repurchase any or all Warrants at the price and on or after _______, ____ (the "Call Date") and upon the occurrence of [insert events or circumstances under which Company may call the Warrants] (the "Call Terms") of $______ per Warrant (the "Call Price"). Notice of such Call Price, Call Date and Call Terms shall be given to registered holders of Warrants in the manner provided in Section 7.05. Section 3.02 Adjustment of Exercise Price and Number of Shares Purchasable or Number of Warrants.3/ The Exercise Price, the number of shares of Common Stock purchasable upon the exercise of each Warrant and the number of Warrants outstanding are subject to adjustment from time to time upon the occurrence of the events enumerated in this Section 3.02. [Additional events may be added, and this Agreement modified accordingly, prior to the issuance of Warrants hereunder.] (a) If the Company shall (i) pay a dividend in or make a distribution of shares of its capital stock, whether shares of Common Stock or shares of its capital stock of any other class, (ii) subdivide its outstanding shares of Common Stock, (iii) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock or (iv) issue any shares of its capital stock in a reclassification of the Common Stock (other than (x) a reclassification in connection with a consolidation or merger in which the Company is the continuing corporation and (y) a reclassification involving only a change from par value to no par value or from no par value to par value), the number of shares of Common Stock purchasable upon exercise of each Warrant immediately prior __________________________________ 2/ Complete and modify the provisions of this Section as appropriate to reflect the exact terms of the Warrants. 3/ Complete and modify the provisions of this Section as appropriate to reflect the exact terms of the Warrants. 9 Page 8 thereto shall be adjusted so that the holder of each Warrant shall be entitled to receive the kind and number of shares of Common Stock or other securities of the Company which such holder would have owned or have been entitled to receive after the happening of any of the events described above, had such Warrant been exercised immediately prior to the happening of such event or any record date with respect thereto. An adjustment made pursuant to this paragraph (a) shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event. (b) If the Company shall issue rights, options or warrants to all holders of its outstanding Common Stock, without any charge to holders, entitling them to subscribe for or purchase such shares of Common Stock at a price per share that is lower than the market price per share of Common Stock (as defined in paragraph (e) below) at the record date mentioned below, the number of shares of Common Stock thereafter purchasable upon the exercise of each Warrant shall be determined by multiplying the number of shares of Common Stock theretofore purchasable upon exercise of each Warrant by a fraction, of which the numerator shall be (i) the number of shares of Common Stock outstanding on the date of issuance of such rights, options or warrants plus the number of additional shares of Common Stock offered for subscription or purchase, and of which the denominator shall be (ii) the number of shares of Common Stock outstanding on the date of issuance of such rights, options or warrants plus the number of shares which the aggregate offering price of the total numbers of shares of Common Stock so offered would purchase at the market price per share of Common Stock at such record date. Such adjustment shall be made whenever such rights, options or warrants are issued, and shall become effective retroactively immediately after the record date for the determination of stockholders entitled to receive such rights, options or warrants. (c) If the Company shall distribute to all holders of its shares of Common Stock evidences of its indebtedness or assets (excluding cash dividends or distributions payable out of capital surplus and dividends or distributions referred to in paragraph (a) above) or rights, options or warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Common Stock 10 Page 9 (excluding those referred to in paragraph (b) above), then in each case the number of shares of Common Stock thereafter purchasable upon the exercise of each Warrant shall be determined by multiplying the number of shares of Common Stock theretofore purchasable upon the exercise of each Warrant, by a fraction, of which the numerator shall be (i) the then current market price per share of Common Stock (as defined in paragraph (e) below) on the date of such distribution, and of which the denominator shall be (ii) the then current market price per share of Common Stock less the then fair value (as determined by the Board of Directors of the Company, whose determination shall be conclusive) of the portion of the assets or evidences of indebtedness so distributed or of such subscription rights, options or warrants or convertible or exchangeable securities applicable to one share of Common Stock. Such adjustment shall be made whenever any such distribution is made, and shall become effective on the date of distribution retroactive to the record date for the determination of stockholders entitled to receive such distribution. (d) In the event of any capital reorganization or any reclassification of the Common Stock (except as provided in paragraphs (a) through (c) above), any holder of Warrants upon exercise thereof shall be entitled to receive, in lieu of the Common Stock to which he would have become entitled upon exercise immediately prior to such reorganization or reclassification, the shares (of any class or classes) or other securities or property of the Company that he would have been entitled to receive at the same aggregate Exercise Price upon such reorganization or reclassification if his Warrants had been exercised immediately prior thereto. (e) For the purpose of any computation under paragraphs (b) and (c) of this Section 3.02, the current or closing market price per share of Common Stock at any date shall be deemed to be the average of the daily closing prices for _________ consecutive trading days commencing ______ trading days before the date of such computation. The closing price for each day shall be [the last sale price] [the average of the closing bid and asked prices] for such day, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange. 11 Page 10 (f) Whenever the number of shares of Common Stock purchasable upon the exercise of each Warrant is adjusted as herein provided, the Exercise Price payable upon exercise of each Warrant shall be adjusted by multiplying such Exercise Price immediately prior to such adjustment by a fraction, of which the numerator shall be the number of shares purchasable upon the exercise of each Warrant immediately prior to such adjustment, and of which the denominator shall be the number of shares so purchasable immediately thereafter. (g) The Company may elect, on or after the date of any adjustment required by paragraphs (a) through (d) of this Section 3.02, to adjust the number of Warrants in substitution for an adjustment in the number of shares of Common Stock purchasable upon the exercise of a Warrant. Each of the Warrants outstanding after such adjustment of the number of Warrants shall be exercisable for the same number of shares of Common Stock as immediately prior to such adjustment. Each Warrant held of record prior to such adjustment of the number of Warrants shall become that number of Warrants (calculated to the nearest hundredth) obtained by dividing the Exercise Price in effect prior to adjustment of the Exercise Price by the Exercise Price in effect after adjustment of the Exercise Price. The Company shall notify the holders of Warrants in the same manner as provided in the first paragraph of Section 7.05, of its election to adjust the number of Warrants, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the Exercise Price is adjusted or any day thereafter. Upon each adjustment of the number of Warrants pursuant to this paragraph (g) the Company shall, as promptly as practicable, cause to be distributed to holders of record of Warrants on such record date Warrant Certificates evidencing, subject to paragraph (h), the additional Warrants to which such holders shall be entitled as a result of such adjustment, or, at the option of the Company, shall cause to be distributed to such holders of record in substitution and replacement for the Warrant Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Company, new Warrant Certificates evidencing all the Warrants to be issued, executed and registered in the manner specified in Section 1 (and which may bear, at the option of the Company, the adjusted Exercise Price) and shall be registered in the names of the holders of 12 Page 11 record of Warrant Certificates on the record date specified in the notice. (h) The Company shall not be required to issue fractions of Warrants on any distribution of Warrants to holders of Warrant Certificates pursuant to paragraph (g) or to distribute Warrant Certificates that evidence fractional Warrants. In lieu of such fractional Warrants there shall be paid to the registered holders of the Warrant Certificates with regard to which such fractional Warrants would otherwise be issuable, an amount in cash equal to the same fraction of the current market value of a full Warrant. For purposes of this paragraph (h), the current market value of a Warrant shall be the closing price of one Warrant (determined as set forth in paragraph (e)) for the trading day immediately prior to the date on which such fractional Warrant would have been otherwise issuable. (i) Notwithstanding any adjustment pursuant to Section 3.02 in the number of shares of Common Stock purchasable upon the exercise of a Warrant, the Company shall not be required to issue fractions of shares of Common Stock upon exercise of the Warrants or to distribute certificates which evidence fractional shares. In lieu of fractional shares, there shall be paid to the registered holders of Warrant Certificates at the time such Warrant Certificates are exercised as herein provided an amount in cash equal to the same fraction of the current market value of a share of Common Stock. For purposes of this paragraph (i), the current market value of a share of Common Stock shall be the closing price (determined as set forth in paragraph (e)) of a share of Common Stock for the trading day immediately prior to the date of such exercise. ARTICLE IV. REGISTRATION; EXCHANGE, TRANSFER AND SUBSTITUTION OF WARRANT CERTIFICATES Section 4.01 Registration; Exchange and Transfer of Warrant Certificates. The Warrant Agent shall keep, at its corporate trust office [and at _________], books in which, subject to such reasonable regulations as it may 13 Page 12 prescribe, it shall register Warrant Certificates and transfers of outstanding Warrant Certificates. [If Offered Securities and Warrants which are immediately detachable -- Prior to the Detachable Date, each Warrant Certificate may be exchanged or transferred only together with the Offered Security to which such Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, an exchange or transfer of such Offered Security. Additionally, on or prior to the Detachable Date, each transfer of an Offered Security [on the register of the Offered Securities] shall operate also to transfer the Warrant Certificate or Certificates to which such Offered Security was initially attached. After the Detachable Date, upon] [If Offered Securities and Warrants which are immediately detachable or if Warrants alone - -- upon] surrender at the corporate trust office of the Warrant Agent [or _______] of Warrant Certificates properly endorsed [or accompanied by appropriate instruments of transfer] and accompanied by written instructions for [transfer or] exchange, all in form satisfactory to the Company and the Warrant Agent, such Warrant Certificates may be exchanged for other Warrant Certificates or may be transferred in whole or in part; provided that Warrant Certificates issued in exchange for or upon transfer of surrendered Warrant Certificates shall evidence the same aggregate number of Warrants as the Warrant Certificates so surrendered. No service charge shall be made for any exchange or transfer of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any stamp or other tax or governmental charge that may be imposed in connection with any such exchange or transfer. Whenever any Warrant Certificates are so surrendered for exchange or transfer, the Company shall execute and an authorized officer of the Warrant Agent shall manually authenticate and deliver to the person or persons entitled thereto a Warrant Certificate or Warrant Certificates as so requested. The Warrant Agent shall not be required to effect any exchange or transfer which would result in the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a number of full Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any exchange or transfer of Warrant Certificates shall evidence the same obligations, and be entitled to the same benefits under this Agreement, as the 14 Page 13 Warrant Certificates surrendered for such exchange or transfer. Section 4.02 Mutilated, Destroyed, Lost or Stolen Warrant Certificates. If any mutilated Warrant Certificate is surrendered to the Warrant Agent, the Company shall execute and an officer of the Warrant Agent shall manually authenticate and deliver in exchange therefor a new Warrant Certificate of like tenor and bearing a number not contemporaneously outstanding. If there shall be delivered to the Company and the Warrant Agent (i) evidence to their satisfaction of the destruction, loss or theft of any Warrant Certificate and of the ownership thereof 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 Warrant Agent that such Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute and upon its request an officer of the Warrant Agent shall manually authenticate and deliver, in lieu of any such destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of like tenor and bearing a number not contemporaneously outstanding. Upon the issuance of any new Warrant Certificate 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 Warrant Agent) connected therewith. Every new Warrant Certificate issued pursuant to this Section in lieu of any destroyed, lost or stolen Warrant Certificate shall evidence an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates 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 Warrant Certificates. Section 4.03 Persons Deemed Owners. [If Offered Securities and Warrants which are not immediately detachable -- Prior to the Detachable Date, the Company, the Warrant Agent and all other persons may treat the owner of any 15 Page 14 Offered Security as the owner of the Warrant Certificates initially attached thereto for any purpose and as the person entitled to exercise the rights represented by the Warrants evidenced by such Warrant Certificates, any notice to the contrary notwithstanding. After the Detachable Date,] and prior to due presentment of a Warrant Certificate for registration of transfer, the Company, the Warrant Agent and all other persons may treat the Holder as the owner thereof for any purpose and as the person entitled to exercise the rights represented by the Warrants evidenced thereby, any notice to the contrary notwithstanding. Section 4.04 Cancellation of Warrant Certificates. Any Warrant Certificate surrendered for exchange, transfer or exercise of the Warrants evidenced thereby shall, if surrendered to the Company, be delivered to the Warrant Agent, and all Warrant Certificates surrendered or so delivered to the Warrant Agent shall be promptly cancelled by it and shall not be reissued and, except as expressly permitted by this Agreement, no Warrant Certificate shall be issued hereunder in lieu or in exchange thereof. The Company may at any time deliver to the Warrant Agent for cancellation any Warrant Certificates previously issued hereunder which the Company may have acquired in any manner whatsoever, and all Warrant Certificates so delivered shall be promptly cancelled by the Warrant Agent. All cancelled Warrant Certificates held by the Warrant Agent shall be destroyed by it, unless, the Company requests by written order that such cancelled Certificates be returned to the Company. ARTICLE V. OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES Section 5.01 No Rights as Stockholders Conferred by Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby shall entitle the Holder thereof to any of the rights of a stockholder, including, without limitation, the right to receive dividends. Section 5.02 Holder of Warrant Certificate May Enforce Rights. Notwithstanding any of the provisions of 16 Page 15 this Agreement, any Holder of any Warrant Certificate, without the consent of the Warrant Agent, any stockholder or the Holder of any other Warrant Certificate, may, in his own behalf and for his own benefit, enforce, and may institute and maintain any suit, action or proceeding against the Company suitable to enforce or otherwise in respect of, his right to exercise the Warrant or Warrants evidenced by his Warrant Certificate in the manner provided in the Warrant Certificates and in this Agreement. ARTICLE VI. CONCERNING THE WARRANT AGENT Section 6.01 Warrant Agent. The Company hereby appoints _____________ as Warrant Agent of the Company in respect of the Warrants and the Warrant Certificates upon the terms and subject to the conditions herein set forth, and ________ hereby accepts such appointment. The Warrant Agent shall have the power and authority granted to and conferred upon it in the Warrant Certificates and hereby and such further power and authority to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the terms and provisions with respect to such power and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions hereof. Section 6.02 Conditions of Warrant Agent's Obligations. The Warrant Agent accepts its obligations herein set forth, upon the terms and conditions hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders from time to time of the Warrant Certificates shall be subject: (a) Compensation and Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including counsel fees) incurred by the Warrant Agent in connection with the services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Warrant 17 Page 16 Agent, arising out of or in connection with its acting as such Warrant Agent hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance at any time of its powers or duties hereunder. The obligations of the Company under this subsection (a) shall survive the exercise of the Warrant Certificates and the resignation or removal of the Warrant Agent. (b) Agent for the Company. In acting under this Warrant Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the Warrant Certificates. (c) Counsel. The Warrant Agent may consult with counsel, which may include counsel for the Company, and the written advice of such 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. (d) Documents. The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by it in reliance upon any Warrant Certificates, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. (e) Certain Transactions. The Warrant Agent, any of its officers, directors and employees, or any other agent of the Company, in its individual or any other capacity, may become the owner of, or acquire any interest in, any Warrant Certificates, with the same rights that it would have if it were not such Warrant Agent, officer, director, employee or other agent, and, to the extent permitted by applicable law, it may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of holders of Warrant Debt Securities or other obligations of the Company as freely as if it were not such Warrant Agent. 18 Page 17 (f) No Liability for Interest. The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates. (g) No Liability for Invalidity. The Warrant Agent shall not incur any liability with respect to the validity of this Agreement or any of the Warrant Certificates. (h) No Responsibility for Representations. The Warrant Agent shall not be responsible for any of the Recitals or representations contained herein or in the Warrant Certificates (except as to the Warrant Agent's Certificate of Authentication thereon), all of which are made solely by the Company. (i) No Implied Obligations. The Warrant Agent shall be obligated to perform such duties as are herein and in the Warrant Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds of the Warrant Certificates or any exercise of the Warrants evidenced thereby. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt of any written demand from a Holder of a Warrant Certificate with respect to such default, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section 7.04 hereof, to make any demand upon the Company. Section 6.03 Resignation, Removal and Appointment of Successor. 19 Page 18 (a) The Company agrees, for the benefit of the Holders from time to time of the Warrant Certificates, that there shall at all times be a Warrant Agent hereunder until all of the Warrant Certificates are no longer exercisable. (b) The Warrant Agent may at any time resign as such agent by giving written notice to the Company of such intention on its part, specifying the date on which it desires its resignation to become effective; provided that, without the consent of the Company, such date shall not be less than [three months] after the date on which such notice is given. The Warrant Agent hereunder may be removed at any time by the filing with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the date on which the Company expects such removal to become effective. Such resignation or removal shall take effect upon the appointment by the Company of a successor Warrant Agent (which shall be a bank or trust company organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia and authorized under such laws to exercise corporate trust powers) by an instrument in writing filed with such successor Warrant Agent and the acceptance of such appointment by such successor Warrant Agent pursuant to Section 6.03(d). (c) In case at any time the Warrant Agent shall resign, or be removed, or shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors or consent to the appointment of a receiver or custodian of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they mature, or if a receiver or custodian of it or of all or any substantial part of its property shall be appointed, or if an order of any court shall be entered approving any petition filed by or against it under the provisions of any applicable bankruptcy or similar law, or if any public officer shall have taken charge or control of the Warrant Agent or of its property or affairs, a successor Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an instrument filed with the successor Warrant Agent. Upon appointment as aforesaid of a successor Warrant acceptance by the latter of such appointment, the Warrant 20 Page 19 Agent so superseded shall cease to be Warrant Agent hereunder. (d) Any successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all monies, securities and other property on deposit with or held by such predecessor, as Warrant Agent hereunder. (e) Any corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation succeeding to all substantially all the corporate trust business of the Warrant Agent, provided that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto. ARTICLE VII. MISCELLANEOUS [Section 7.01 Consolidations and Mergers of the Company and Sales, Leases and Conveyances Permitted Subject to Certain Conditions. The Company may consolidate with, or sell, lease or convey all or substantially all of its assets to, or merge with or into any other corporation, provided that in any such case, (i) either the Company shall be the continuing corporation, or the successor corporation shall be a corporation organized and existing under the laws of the United States of America or a State thereof and such 21 Page 20 successor corporation shall expressly assume the obligations of the Company hereunder.] Section 7.02 Rights and Duties of Successor Corporation. In case of any such consolidation, merger, sale, lease or conveyance and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Company, with the same effect as if it had been named herein, and the predecessor corporation, except in the event of a lease, shall be relieved of any further obligation under this Agreement and the Warrants. Such successor corporation thereupon may cause to be signed, and may issue either its in own name or in the name of the Company, any or all of the shares of Common Stock issuable pursuant to the terms hereof. Section 7.03 Amendment. This Agreement may be amended by the parties hereto, without the consent of the Holder of any Warrant Certificate, for the purpose of curing any ambiguity, or curing, correcting or supplementing any defective provision contained herein, or making such provisions in regard to matters or questions arising under this Agreement as the Company may deem necessary or desirable; provided that such action shall not adversely affect the interests of the Holders of the Warrant Certificates in any material respect. The Warrant Agent may, but shall not be obligated to, enter into any amendment to this Agreement which affects the Warrant Agent's own rights, duties or immunities under this Agreement or otherwise. Section 7.04 Notices and Demands to the Company and Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Company by the Holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward such notice or demand to the Company. Section 7.05 Notices to Warrantholders. Upon any adjustment of the number of Shares purchasable upon exercise of each Warrant, the Exercise Price or the number of Warrants outstanding pursuant to Section 3.02, the Company, within ____ calendar days thereafter, shall (i) cause to be filed with the Warrant Agent a certificate of an officer of the Company setting forth the Exercise Price and either the number of shares of Common Stock purchasable upon exercise of 22 Page 21 each Warrant or the additional number of Warrants to be issued for each previously outstanding Warrant, as the case may be, after such adjustment and setting forth in reasonable detail the method of calculation and the facts upon which such adjustment is made, which certificate shall be conclusive evidence of the correctness of the matters set forth therein, and (ii) cause to be given to each of the registered holders of the Warrant Certificates at such holder's address appearing on the Warrant Register written notice of such adjustments by first-class mail, postage prepaid. Where appropriate, such notice may be given in advance and included as part of the notice required to be mailed under the other provisions of this Section 7.05. Pursuant to Sections 3.01 [add other sections as applicable], the Company shall cause written notice of such Call Price, Call Date and Call Terms [reference other items as applicable], as the case may be, to be given as soon as practicable to the Warrant Agent and to each of the registered holders of the Warrant Certificates by first-class mail, postage prepaid, at such holder's address appearing on the Warrant Register. If: (a) the Company shall declare any dividend payable in any securities upon its shares of Common Stock or make any distribution (other than a cash dividend) to the holders of its shares of Common Stock; or (b) the Company shall offer to the holders of its shares of Common Stock any additional shares of Common Stock or securities convertible into shares of Common Stock or any right to subscribe thereto; or (c) there shall be a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation, merger, or sale of all or substantially all of its property, assets, and business as an entirety); then the Company shall cause written notice of such event to be filed with the Warrant Agent and shall cause written notice of such event to be given to each of the registered holders of the Warrant Certificates at such holder's address appearing on the Warrant Register, by first- class mail, 23 Page 22 postage prepaid. Such notice shall specify such record date or the date of closing the transfer books, as the case may be. The failure to give the notice required by this Section 7.05 or any defect therein shall not affect the legality or validity of any distribution, right, warrant, dissolution, liquidation or winding up or the vote upon or any other action taken in connection therewith. Section 7.06 Addresses. Any communications from the Company to the Warrant Agent with respect to this Agreement shall be addressed to _____________, Attention: ____________________ and any communications from the Warrant Agent to the Company with respect to this Agreement shall be addressed to ASARCO Incorporated, 180 Maiden Lane, New York, New York 10038, Attention: ________________, with a copy to the ___________________ (or such other address as shall be specified in writing by the Warrant Agent or by the Company). Section 7.07 Governing Law. This Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York. Section 7.08 Delivery of Prospectus. The Company will furnish to the Warrant Agent sufficient copies of a prospectus, appropriately supplemented, relating to the Common Stock (the "Prospectus"), and the Warrant Agent agrees that, upon the exercise of any Warrant Certificate, the Warrant Agent will deliver to the person designated to receive a certificate representing shares of Common Stock, prior to or concurrently with the delivery of such securities, a Prospectus. Section 7.09 Obtaining of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and keep effective any and all permits, consents and approvals of governmental agencies and authorities and securities acts filings under United States Federal and State laws (including, without limitation, the maintenance of the effectiveness of a registration statement in respect of the Common Stock under the Securities Act of 1933), which may be or become required in connection with exercise of the Warrant Certificates and the original issuance and delivery of the Common Stock in connection with such exercise. 24 Page 23 Section 7.10 Persons Having Rights under Warrant Agreement. Nothing in this Agreement expressed or implied and nothing that may be inferred from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the Company, the Warrant Agent and the Holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise or agreement hereof; and all covenants, conditions, stipulations, promises and agreements in this Agreement contained shall be for the sole and exclusive benefit of the Company and the Warrant Agent and their successors and of the Holders of the Warrant Certificates. Section 7.11 Headings. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. Section 7.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original; but such counterparts shall together constitute but one and the same instrument. Section 7.13 Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office of the Warrant Agent [and at ________] for inspection by the Holder of any Warrant Certificate. The Warrant Agent may require such Holder to submit his Warrant Certificate for inspection by it. 25 Page 24 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, and their respective corporate seal to be hereunto affixed and attested, all as of the day and year first above written. ASARCO INCORPORATED By: ---------------- Name: Title: Attest: - ---------------------------- [Assistant] Secretary Attest: [Assistant] Secretary [WARRANT AGENT] By: ---------------- Name: Title: Attest: - --------------------------- [Assistant] Secretary 26 EXHIBIT A [FORM OF WARRANT CERTIFICATE] [Face] Form of Legend if Offered [Prior to _______, this Securities with Warrant Certificate may Warrants which are not be transferred or immediately detachable: exchanged if and only if the [Title of Securi-ty] to which it was initially attached is so transferred or exchanged.] Form of Legend if Warrants [Prior to ________, are not immediately Warrants evidenced by exercisable: this Warrant Certificate cannot be exercised.] EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN VOID AFTER 5:00 P.M. NEW YORK CITY TIME ON ________, ____ ASARCO INCORPORATED Warrant Certificate representing Warrants to purchase Common Stock as described herein ------------------- No. _____________ Warrants This certifies that ________ or registered assigns is the registered owner of the above indicated number of Warrants, each Warrant entitling such registered owner to purchase, at any time after 5:00 p.m New York City time on __________, ____, and on or before 5:00 p.m New York City time on ____________, ____, one share of the common stock, without par value ("Common Stock") of ASARCO Incorporated 27 EXHIBIT A Page 2 (the "Company"), on the following basis.1/ [During the period from ________, ____ through and including ____________, ____, each Warrant shall entitle the Holder thereof, subject to the provisions of this Agreement, to purchase from the Company one share of Common Stock at the exercise price of $____; during the period from _________, ____ through and including ________, ____, each Warrant shall entitle the Holder thereof, subject to the provisions of this Agreement, to purchase from the Company the one share of Common Stock at the exercise price of $_____ (the "Exercise Price"). The Holder of this Warrant Certificate may exercise the Warrants evidenced hereby, in whole or in part, by surrendering this Warrant Certificate, with the purchase form set forth hereon duly completed, accompanied by payment in full, in lawful money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds or by bank wire transfer in immediately available funds], the Exercise Price for each Warrant exercised, to the Warrant Agent (as hereinafter defined), at the corporate trust office of [name of Warrant Agent], or its successor as warrant agent (the "Warrant Agent") [or at _____________], at the addresses specified on the reverse hereof and upon compliance with and subject to the conditions set forth herein and in the Warrant Agreement (as hereinafter defined). The term "Holder" as used herein shall mean [If Offered Securities with Warrants which are not immediately detachable -- Prior to _______, ____ (the "Detachable Date"), the registered owner of the Company's [title of Offered Securities] to which such Warrant Certificate was initially attached, and after such Detachable Date,] the person in whose name at the time such Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose pursuant to Section 4.01. Any whole number of Warrants evidenced by this Warrant Certificate may be exercised to purchase shares of Common Stock. Upon any exercise of fewer than all of the Warrants evidenced by this Warrant Certificate, there shall be issued to the registered owner hereof a new Warrant - ---------------------------------- 1/ Complete and modify the following provisions as appropriate to reflect the terms of the Warrants. 28 EXHIBIT A Page 3 Certificate evidencing the number of Warrants remaining unexercised. This Warrant Certificate is issued under and in accordance with the Warrant Agreement dated as of ___________, ____ (the "Warrant Agreement"), between the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all of which terms and provisions the holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement are on file at the above-mentioned office of the Warrant Agent [and at ___________]. [If Offered Securities with Warrants which are not immediately detachable -- Prior to ___________, ____ (the "Detachable Date"), this Warrant Certificate may be exchanged or transferred only together with the [title of Offered Security] (the "Offered Security") to which this Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, an exchange or transfer of such Offered Security. Additionally, on or prior to the Detachable Date, each transfer of such Offered Security on the register of the Offered Securities shall operate also to transfer this Warrant Certificate. After the Detachable Date, this] [If Offered Securities with Warrants which are immediately detachable or Warrants alone--This] Warrant Certificate, and all rights hereunder, may be transferred when surrendered at the corporate trust office of the Warrant Agent [or _____] by the registered owner or his assigns, in person or by an attorney duly authorized in writing, in the manner and subject to the limitations provided in the Warrant Agreement. [If Offered Securities with Warrants which are not immediately detachable -- Except as provided in the immediately preceding paragraph, after] [If Offered Securities with Warrants which are immediately detachable or Warrants alone -- After] authentication by the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the corporate trust office of the Warrant Agent [or at ___________] for Warrant Certificates representing the same aggregate number of Warrants. 29 EXHIBIT A Page 4 This Warrant Certificate shall not entitle the registered owner hereof to any of the rights of a stockholder, including, without limitation, the right to receive dividends. Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. This Warrant Certificate shall not be valid obligatory for any purpose until authenticated by the Warrant Agent. IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly executed. Dated: -------------------, ---- ASARCO INCORPORATED By: --------------------------- Name: Title: Attest: - ------------------------- Countersigned: - ------------------------- As Warrant Agent By ----------------------- Authorized Signature 30 EXHIBIT A Page 5 [REVERSE] [FORM OF WARRANT CERTIFICATE] (Instructions for Exercise of Warrants) To exercise any Warrants evidenced hereby, the Holder of this Warrant Certificate must pay [in cash or by certified check or official bank check in New York Clearing House funds or by bank wire transfer in immediately available funds], the Exercise Price in full for each of the Warrants exercised, to _________________, Corporate Trust Department, ______________, Attn: [or _________________], which payment should specify the name of the Holder of this Warrant Certificate and the number of Warrants exercised by such Holder. In addition, the Holder of this Warrant Certificate should complete the information required below and present in person or mail by registered mail this Warrant Certificate to the Warrant Agent at the addresses set forth below. [FORM OF EXERCISE] (To be executed upon exercise of Warrants) The undersigned hereby irrevocably elects to exercise Warrants, represented by this Warrant Certificate, to purchase _______ shares of the common stock, without par value ("Common Stock") of ASARCO Incorporated and represents that he has tendered payment for such shares of Common Stock [in cash or by certified check or official bank check in New York Clearing House funds or by bank wire transfer in immediately available funds] to the order of ASARCO Incorporated, c/o _______________, in the amount of $________ in accordance with the terms hereof. The undersigned requests that said shares of Common Stock be registered in such names and delivered, all as specified in accordance with the instructions set forth below. If said number of shares of Common Stock is less than all of the shares of Common Stock purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of the Warrants evidenced hereby be issued and delivered to the undersigned unless otherwise specified in the instructions below. 31 EXHIBIT A Page 6 Dated: Name ------------------ - -------------------------- (Please Print) (Insert Social Security or Other Identifying Number of Holder) Address --------------- ---------------------- ----------------------- Signature (Signature must conform in all respects to name of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a bank, trust company or member broker of the New York, Midwest or Pacific Stock Exchange) This Warrant may be exercised at the following addresses: By hand at --------------------------- --------------------------- --------------------------- --------------------------- By mail at --------------------------- --------------------------- --------------------------- --------------------------- (Instructions as to form and delivery of certificates representing shares of Common Stock and/or Warrant Certificates): 32 EXHIBIT A Page 7 [FORM OF ASSIGNMENT] (TO BE EXECUTED TO TRANSFER THE WARRANT CERTIFICATE) FOR VALUE RECEIVED __________________ hereby sells, assigns and transfers unto Please insert social security or other identifying number --------------------- - --------------------------- Please print name and address including zip code __________________________________________________________ the right represented by the within Warrant Certificate and does hereby irrevocably constitute and appoint _____________, Attorney, to transfer said Warrant Certificate on the books of the Warrant Agent with full power of substitution. Dated: ----------------------------- Signature (Signature must conform in all respects to name of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a bank, trust company or member broker of the New York, Midwest or Pacific Stock Exchange) Signature Guaranteed: 33 EXHIBIT A Page 8 - -------------------------- EX-4.4 6 FORM OF PREFERRED STOCK WARRANT AGREEMENT 1 EXHIBIT 4.4 FORM OF PREFERRED STOCK WARRANT AGREEMENT ----------------------------------------------------------- ASARCO INCORPORATED and --------------------- As Warrant Agent WARRANT AGREEMENT Dated as of ---------------, ---- ----------------------------------------------------------- 2 THIS WARRANT AGREEMENT, dated as of ______________, ____, between ASARCO Incorporated, a corporation duly organized and existing under the laws of the State of New Jersey (the "Company") and _______________, a [corporation] [national banking association] organized and existing under the laws of ______________, as warrant agent (herein called the "Warrant Agent"). WHEREAS, the Company proposes to sell [If offered securities and warrants -- [title of offered securities being offered] (the "Offered Securities") with] warrant certificates (such warrant certificates and other warrant certificates issued pursuant to this Agreement herein called the "Warrant Certificates") evidencing one or more warrants (the "Warrants" or, individually, a "Warrant") representing the right to purchase shares of [insert title of Preferred Stock or Depository Shares (the "Warrant Securities"); and WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, exchange, exercise and replacement of the Warrant Certificates, and in this Agreement wishes to set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which they may be issued, exchanged, exercised and replaced. NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows: ARTICLE I. ISSUANCE, EXECUTION AND COUNTERSIGNATURE OF WARRANT CERTIFICATES Section 1.01 Issuance of Warrant Certificates. [If Warrants alone -- Upon issuance, each Warrant Certificate shall evidence one or more Warrants.] [If Offered Securities and Warrants -- Warrant Certificates shall be initially issued in units with the Offered Securities and shall not be separately transferable [before ____________, ____ (the 3 Page 2 "Detachable Date"]. Each Warrant Certificate included in each such unit shall evidence an aggregate of ___________ Warrants.] Each Warrant evidenced thereby shall represent the right, subject to the provisions contained herein and therein, to purchase ___ Warrant Security(ies). Section 1.02 Form of Warrant Certificates. The Warrant Certificates (including the Form[s] of Exercise and Assignment to be set forth on the reverse thereof) shall be in substantially the form set forth in Exhibit A hereto, shall be printed, lithographed or engraved on steel engraved borders (or in any other manner determined by the officers executing such Warrant Certificates, as evidenced by their execution of such Warrant Certificates) and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on which the Warrant Certificates may be listed or as may, consistently herewith, be determined by the officers executing such Warrant Certificates, as evidenced by their execution of the Warrant Certificates. Section 1.03 Execution and Countersignature of Warrant Certificates. The Warrant Certificates shall be executed on behalf of the Company by its Chairman of the Board, President, Chief Financial Officer or its Treasurer attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Warrant Certificates may be manual or facsimile. Warrant Certificates evidencing the right to purchase a number of shares of Warrant Securities having an aggregate value not exceeding $________ (except as provided in Sections 1.04, 2.03(c), 3.01 and 3.02) may be executed by the Company and delivered to the Warrant Agent upon the execution of this Warrant Agreement or from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates duly executed on behalf of the Company, authenticate Warrant Certificates evidencing Warrants representing the right to purchase a number of shares of Warrant Securities having an aggregate value not exceeding $____________ and shall deliver such Warrant Certificates to or upon the order of the Company. Subsequent to such original issuance of the Warrant Certificates, the Warrant 4 Page 3 Agent shall authenticate a Warrant Certificate only if the Warrant Certificate is issued in exchange or substitution for one or more previously authenticated Warrant Certificates or in connection with their transfer, as hereinafter provided. Each Warrant Certificate shall be dated the date of its authentication by the Warrant Agent. No Warrant Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been authenticated by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed by the Company shall be conclusive evidence, and the only evidence, that the Warrant Certificate so authenticated has been duly issued hereunder. Warrant Certificates bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Warrant Certificates or did not hold such offices at the date of such Warrant Certificates. Section 1.04 Temporary Warrant Certificates. Pending the preparation of definitive Warrant Certificates, the Company may execute, and upon the order of the Company the Warrant Agent shall authenticate and deliver, temporary Warrant Certificates which are printed, lithographed, typewritten, mimeographed or otherwise produced substantially of the tenor of the definitive Warrant Certificates in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Warrant Certificates may determine, as evidenced by their execution of such Warrant Certificates. If temporary Warrant Certificates are issued, the Company will cause definitive Warrant Certificates to be prepared without unreasonable delay. After the preparation of definitive Warrant Certificates, the temporary Warrant Certificates shall be exchangeable for definitive Warrant Certificates upon surrender of the temporary Warrant 5 Page 4 Certificates at the corporate trust office of the Warrant Agent [or ___], without charge to the Holder (as defined in Section 1.06 below). Upon surrender for cancellation of any one or more temporary Warrant Certificates the Company shall execute and the Warrant Agent shall authenticate and deliver in exchange therefor definitive Warrant Certificates representing the same aggregate number of Warrants. Until so exchanged, the temporary Warrant Certificates shall in all respects be entitled to the same benefits under this Agreement as definitive Warrant Certificates. Section 1.05 Payment of Taxes. The Company will pay all stamp taxes and other duties, if any, to which, under the laws of the United States of America or any State or political subdivision thereof, this Agreement or the original issuance of the Warrant Certificates may be subject. Section 1.06 Definition of Holder. The term "Holder" as used herein shall mean [If Offered Securities and Warrants which are not immediately detachable -- Prior to the Detachable Date, the registered owner of the Offered Security to which such Warrant Certificate was initially attached, and, after such Detachable Date,] the person in whose name at the time such Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose pursuant to Section 4.01. [If Offered Securities and Warrants which are not immediately detachable -- Prior to the Detachable Date, the Company will, or will cause the registrar of the Offered Securities to make available to the Warrant Agent current information as to Holders of the Offered Securities.] ARTICLE II. WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS Section 2.01 Warrant Price.1/ During the period from ________, ____ through and including ___________, ____ each Warrant shall entitle the Holder thereof, subject to the provisions of this Agreement, to purchase from the Company - ---------------------------------- 1/ Complete and modify the provisions of this Section as appropriate to reflect the exact terms of the Warrants. 6 Page 5 ______ Warrant Securities at the exercise price of $__________. During the period from _________, ____ through and including ____________, ____ , each Warrant shall entitle the Holder thereof, subject to the provisions of this Agreement, to purchase from the Company ______ Warrant Securities at the exercise price of $______. Such exercise price of each Warrant is referred to in this Agreement as the "Exercise Price." No adjustment shall be made for any dividends on any Warrant Securities issuable upon exercise of any Warrant. Section 2.02 Duration of Warrants. Any Warrant evidenced by a Warrant Certificate may be exercised at any time, as specified herein, on or after [the date thereof] [_________, ____] and at or before 5:00 p.m. New York City time on __________, ____ (the "Expiration Date"). Each Warrant not exercised at or before 5:00 p.m. New York City time on the Expiration Date shall become void, and all rights of the Holder of the Warrant Certificate evidencing such Warrant under this Agreement or otherwise shall cease. Section 2.03 Exercise of Warrants. (a) During the period specified in Section 2.02, any whole number of Warrants may be exercised by surrendering the Warrant Certificate evidencing such Warrants at the place or at the places set forth in the Warrant Certificate, with the purchase form set forth in the Warrant Certificate duly executed, accompanied by payment in full, in lawful money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds], of the Exercise Price for each Warrant exercised. The date on which payment in full of the Exercise Price for a Warrant and the duly executed and completed Warrant Certificate are received by the Warrant Agent shall be deemed to be the date on which such Warrant is exercised. The Warrant Agent shall deposit all funds received by it as payment for the exercise of Warrants to the account of the Company maintained with it for such purpose and shall advise the Company by telephone at the end of each day on which such a payment is received of the amount so deposited to its account. The Warrant Agent shall promptly confirm such telephonic advice to the Company in writing. 7 Page 6 (b) The Warrant Agent shall from time to time, as promptly as practicable after the exercise of any Warrants in accordance with the terms and conditions of this Agreement and the Warrant Certificates, advise the Company of (i) the number of Warrants so exercised, (ii) the instructions of each Holder of the Warrant Certificates evidencing such Warrants with respect to delivery of Warrant Securities to which such Holder is entitled upon such exercise, and instructions of such Holder as to delivery of Warrant Certificates evidencing the balance, if any, of the Warrants remaining after such exercise, and (iii) such other information as the Company shall reasonably require. (c) As soon as practicable after the exercise of any Warrants, the Company shall issue, to or upon the order of the Holder of the Warrant Certificate evidencing such Warrants, Warrant Securities to which such Holder is entitled in such name or names as may be directed by such Holder; and, if fewer than all of the Warrants evidenced by such Warrant Certificate were exercised, the Company shall execute and an authorized officer of the Warrant Agent shall manually authenticate and deliver a new Warrant Certificate evidencing the number of Warrants remaining unexercised. (d) The Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer involved in the issuance of the Warrant Securities; and in the event that any such transfer is involved, the Company shall not be required to issue or deliver any Warrant Securities until such tax or other charge shall have been paid or it has been established to the Company's satisfaction that no such tax or other charge is due. Section 2.04 Reservation of Shares. For the purpose of enabling it to satisfy any obligation to issue shares of Warrant Securities upon exercise of Warrants, the Company will at all times through 5:00 p.m. New York City time on the Expiration Date, reserve and keep available, free from preemptive rights and out of its aggregate authorized but unissued Warrant Securities, the number of shares deliverable upon the exercise of all outstanding Warrants. 8 Page 7 ARTICLE III. REGISTRATION; EXCHANGE, TRANSFER AND SUBSTITUTION OF WARRANT CERTIFICATES Section 3.01 Registration; Exchange and Transfer of Warrant Certificates. The Warrant Agent shall keep, at its corporate trust office [and at _________], books in which, subject to such reasonable regulations as it may prescribe, it shall register Warrant Certificates and transfers of outstanding Warrant Certificates. [If Offered Securities and Warrants which are immediately detachable -- Prior to the Detachable Date, each Warrant Certificate may be exchanged or transferred only together with the Offered Security to which such Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, an exchange or transfer of such Offered Security. Additionally, on or prior to the Detachable Date, each transfer of an Offered Security [on the register of the Offered Securities] shall operate also to transfer the Warrant Certificate or Certificates to which such Offered Security was initially attached. After the Detachable Date, upon] [If Offered Securities and Warrants which are immediately detachable or if Warrants alone - -- upon] surrender at the corporate trust office of the Warrant Agent [or _______] of Warrant Certificates properly endorsed [or accompanied by appropriate instruments of transfer] and accompanied by written instructions for [transfer or] exchange, all in form satisfactory to the Company and the Warrant Agent, such Warrant Certificates may be exchanged for other Warrant Certificates or may be transferred in whole or in part; provided that Warrant Certificates issued in exchange for or upon transfer of surrendered Warrant Certificates shall evidence the same aggregate number of Warrants as the Warrant Certificates so surrendered. No service charge shall be made for any exchange or transfer of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any stamp or other tax or governmental charge that may be imposed in connection with any such exchange or transfer. Whenever any Warrant Certificates are so surrendered for exchange or transfer, the Company shall execute and an authorized officer of the Warrant Agent shall manually authenticate and deliver to the 9 Page 8 person or persons entitled thereto a Warrant Certificate or Warrant Certificates as so requested. The Warrant Agent shall not be required to effect any exchange or transfer which would result in the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a number of full Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any exchange or transfer of Warrant Certificates shall evidence the same obligations, and be entitled to the same benefits under this Agreement, as the Warrant Certificates surrendered for such exchange or transfer. Section 3.02 Mutilated, Destroyed, Lost or Stolen Warrant Certificates. If any mutilated Warrant Certificate is surrendered to the Warrant Agent, the Company shall execute and an officer of the Warrant Agent shall manually authenticate and deliver in exchange therefor a new Warrant Certificate of like tenor and bearing a number not contemporaneously outstanding. If there shall be delivered to the Company and the Warrant Agent (i) evidence to their satisfaction of the destruction, loss or theft of any Warrant Certificate and of the ownership thereof 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 Warrant Agent that such Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute and upon its request an officer of the Warrant Agent shall manually authenticate and deliver, in lieu of any such destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of like tenor and bearing a number not contemporaneously outstanding. Upon the issuance of any new Warrant Certificate 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 Warrant Agent) connected therewith. Every new Warrant Certificate issued pursuant to this Section in lieu of any destroyed, lost or stolen Warrant Certificate shall evidence an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly issued hereunder. The provisions of this 10 Page 9 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 Warrant Certificates. Section 3.03 Persons Deemed Owners. [If Offered Securities and Warrants which are not immediately detachable -- Prior to the Detachable Date, the Company, the Warrant Agent and all other persons may treat the owner of any Offered Security as the owner of the Warrant Certificates initially attached thereto for any purpose and as the person entitled to exercise the rights represented by the Warrants evidenced by such Warrant Certificates, any notice to the contrary notwithstanding. After the Detachable Date,] and prior to due presentment of a Warrant Certificate for registration of transfer, the Company, the Warrant Agent and all other persons may treat the Holder as the owner thereof for any purpose and as the person entitled to exercise the rights represented by the Warrants evidenced thereby, any notice to the contrary notwithstanding. Section 3.04 Cancellation of Warrant Certificates. Any Warrant Certificate surrendered for exchange, transfer or exercise of the Warrants evidenced thereby shall, if surrendered to the Company, be delivered to the Warrant Agent, and all Warrant Certificates surrendered or so delivered to the Warrant Agent shall be promptly cancelled by it and shall not be reissued and, except as expressly permitted by this Agreement, no Warrant Certificate shall be issued hereunder in lieu or in exchange thereof. The Company may at any time deliver to the Warrant Agent for cancellation any Warrant Certificates previously issued hereunder which the Company may have acquired in any manner whatsoever, and all Warrant Certificates so delivered shall be promptly cancelled by the Warrant Agent. All cancelled Warrant Certificates held by the Warrant Agent shall be destroyed by it, unless, by written order, the Company requests their return to it. 11 Page 10 ARTICLE IV. OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES Section 4.01 No Rights as Stockholders Conferred by Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby shall entitle the Holder thereof to any of the rights of a stockholder, including, without limitation, the right to receive dividends. Section 4.02 Holder of Warrant Certificate May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any Holder of any Warrant Certificate, without the consent of the Warrant Agent, any stockholder or the Holder of any other Warrant Certificate, may, in his own behalf and for his own benefit, enforce, and may institute and maintain any suit, action or proceeding against the Company suitable to enforce or otherwise in respect of, his right to exercise the Warrant or Warrants evidenced by his Warrant Certificate in the manner provided in the Warrant Certificates and in this Agreement. ARTICLE V. CONCERNING THE WARRANT AGENT Section 5.01 Warrant Agent. The Company hereby appoints _____________ as Warrant Agent of the Company in respect of the Warrants and the Warrant Certificates upon the terms and subject to the conditions herein set forth, and ________ hereby accepts such appointment. The Warrant Agent shall have the power and authority granted to and conferred upon it in the Warrant Certificates and hereby and such further power and authority to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the terms and provisions with respect to such power and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions hereof. Section 5.02 Conditions of Warrant Agent's Obligations. The Warrant Agent accepts its obligations herein set forth, upon the terms and conditions hereof, including the following, to all of which the Company agrees 12 Page 11 and to all of which the rights hereunder of the Holders from time to time of the Warrant Certificates shall be subject: (a) Compensation and Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including counsel fees) incurred by the Warrant Agent in connection with the services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Warrant Agent, arising out of or in connection with its acting as such Warrant Agent hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance at any time of its powers or duties hereunder. The obligations of the Company under this subsection (a) shall survive the exercise of the Warrant Certificates and the resignation or removal of the Warrant Agent. (b) Agent for the Company. In acting under this Warrant Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the Warrant Certificates. (c) Counsel. The Warrant Agent may consult with counsel, which may include counsel for the Company, and the written advice of such 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. (d) Documents. The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by it in reliance upon any Warrant Certificates, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. 13 Page 12 (e) Certain Transactions. The Warrant Agent, any of its officers, directors and employees, or any other agent of the Company, in its individual or any other capacity, may become the owner of, or acquire any interest in, any Warrant Certificates, with the same rights that it would have if it were not such Warrant Agent, officer, director, employee or other agent, and, to the extent permitted by applicable law, it may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of holders of Warrant Securities or other obligations of the Company as freely as if it were not such Warrant Agent. (f) No Liability for Interest. The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates. (g) No Liability for Invalidity. The Warrant Agent shall not incur any liability with respect to the validity of this Agreement or any of the Warrant Certificates. (h) No Responsibility for Representations. The Warrant Agent shall not be responsible for any of the Recitals or representations contained herein or in the Warrant Certificates (except as to the Warrant Agent's Certificate of Authentication thereon), all of which are made solely by the Company. (i) No Implied Obligations. The Warrant Agent shall be obligated to perform such duties as are herein and in the Warrant Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates authenticated by the Warrant Agent 14 Page 13 and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds of the Warrant Certificates or any exercise of the Warrants evidenced thereby. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt of any written demand from a Holder of a Warrant Certificate with respect to such default, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section 6.04 hereof, to make any demand upon the Company. Section 5.03 Resignation, Removal and Appointment of Successor. (a) The Company agrees, for the benefit of the Holders from time to time of the Warrant Certificates, that there shall at all times be a Warrant Agent hereunder until all of the Warrant Certificates are no longer exercisable. (b) The Warrant Agent may at any time resign as such agent by giving written notice to the Company of such intention on its part, specifying the date on which it desires its resignation to become effective; provided that, without the consent of the Company, such date shall not be less than [three months] after the date on which such notice is given. The Warrant Agent hereunder may be removed at any time by the filing with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the date on which the Company expects such removal to become effective. Such resignation or removal shall take effect upon the appointment by the Company of a successor Warrant Agent (which shall be a bank or trust company organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia and authorized under such laws to exercise corporate trust powers) by an instrument in writing filed with such successor Warrant Agent and the acceptance of such appointment by such successor Warrant Agent pursuant to Section 5.03(d). 15 Page 14 (c) In case at any time the Warrant Agent shall resign, or be removed, or shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors or consent to the appointment of a receiver or custodian of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they mature, or if a receiver or custodian of it or of all or any substantial part of its property shall be appointed, or if an order of any court shall be entered approving any petition filed by or against it under the provisions of any applicable bankruptcy or similar law, or if any public officer shall have taken charge or control of the Warrant Agent or of its property or affairs, a successor Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an instrument filed with the successor Warrant Agent. Upon appointment as aforesaid of a successor Warrant acceptance by the latter of such appointment, the Warrant Agent so superseded shall cease to be Warrant Agent hereunder. (d) Any successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all monies, securities and other property on deposit with or held by such predecessor, as Warrant Agent hereunder. (e) Any corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation succeeding to all substantially all the corporate trust business of the Warrant Agent, provided that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement without the execution or 16 Page 15 filing of any paper or any further act on the part of any of the parties hereto. ARTICLE VI. MISCELLANEOUS [Section 6.01 Consolidations and Mergers of the Company and Sales, Leases and Conveyances Permitted Subject to Certain Conditions. The Company may consolidate with, or sell, lease or convey all or substantially all of its assets to, or merge with or into any other corporation, provided that in any such case, (i) either the Company shall be the continuing corporation, or the successor corporation shall be a corporation organized and existing under the laws of the United States of America or a State thereof and such successor corporation shall expressly assume the obligations of the Company hereunder.] Section 6.02 Rights and Duties of Successor Corporation. In case of any such consolidation, merger, sale, lease or conveyance and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Company, with the same effect as if it had been named herein, and the predecessor corporation, except in the event of a lease, shall be relieved of any further obligation under this Agreement and the Warrants. Such successor corporation thereupon may cause to be signed, and may issue either its in own name or in the name of the Company, any or all of the Warrant Securities issuable pursuant to the terms hereof. Section 6.03 Amendment. This Agreement may be amended by the parties hereto, without the consent of the Holder of any Warrant Certificate, for the purpose of curing any ambiguity, or curing, correcting or supplementing any defective provision contained herein, or making such provisions in regard to matters or questions arising under this Agreement as the Company may deem necessary or desirable; provided that such action shall not adversely affect the interests of the Holders of the Warrant Certificates in any material respect. The Warrant Agent may, but shall not be obligated to, enter into any amendment to 17 Page 16 this Agreement which affects the Warrant Agent's own rights, duties or immunities under this Agreement or otherwise. Section 6.04 Notices and Demands to the Company and Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Company by the Holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward such notice or demand to the Company. Section 6.05 Addresses. Any communications from the Company to the Warrant Agent with respect to this Agreement shall be addressed to _____________, Attention: ____________________ and any communications from the Warrant Agent to the Company with respect to this Agreement shall be addressed to ASARCO Incorporated, 180 Maiden Lane, New York, New York 10038, Attention: ________________, with a copy to the ___________________ (or such other address as shall be specified in writing by the Warrant Agent or by the Company). Section 6.06 Governing Law. This Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York. Section 6.07 Delivery of Prospectus. The Company will furnish to the Warrant Agent sufficient copies of a prospectus, appropriately supplemented, relating to the Warrant Securities (the "Prospectus"), and the Warrant Agent agrees that, upon the exercise of any Warrant Certificate, the Warrant Agent will deliver to the person designated to receive a certificate representing Warrant Securities, prior to or concurrently with the delivery of such securities, a Prospectus. Section 6.08 Obtaining of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and keep effective any and all permits, consents and approvals of governmental agencies and authorities and securities acts filings under United States Federal and State laws (including, without limitation, the maintenance of the effectiveness of a registration statement in respect of the Warrant Securities under the Securities Act of 1933), which may be or become required in connection with exercise of the Warrant Certificates and the original 18 Page 17 issuance and delivery of the Warrant Securities in connection with such exercise. Section 6.09 Persons Having Rights under Warrant Agreement. Nothing in this Agreement expressed or implied and nothing that may be inferred from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the Company, the Warrant Agent and the Holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise or agreement hereof; and all covenants, conditions, stipulations, promises and agreements in this Agreement contained shall be for the sole and exclusive benefit of the Company and the Warrant Agent and their successors and of the Holders of the Warrant Certificates. Section 6.10 Headings. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. Section 6.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original; but such counterparts shall together constitute but one and the same instrument. Section 6.12 Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office of the Warrant Agent [and at ________] for inspection by the Holder of any Warrant Certificate. The Warrant Agent may require such Holder to submit his Warrant Certificate for inspection by it. 19 Page 18 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, and their respective corporate seal to be hereunto affixed and attested, all as of the day and year first above written. ASARCO INCORPORATED By: ---------------- Name: Title: Attest: - ---------------------------- [Assistant] Secretary Attest: [Assistant] Secretary [WARRANT AGENT] By: ---------------- Name: Title: Attest: - ---------------------------- [Assistant] Secretary 20 EXHIBIT A [FORM OF WARRANT CERTIFICATE] [Face] Form of Legend if Offered [Prior to _______, this Securities with Warrant Certificate may Warrants which are not be transferred or immediately detachable: exchanged if and only if the [Title of Security] to which it was initially attached is so transferred or exchanged.] Form of Legend if Warrants [Prior to ________, are not immediately Warrants evidenced by exercisable: this Warrant Certificate cannot be exercised.] EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN VOID AFTER 5:00 P.M. NEW YORK CITY TIME ON ________, ____ ASARCO INCORPORATED Warrant Certificate representing Warrants to purchase Warrant Securities as described herein No. _____________ Warrants This certifies that ________ or registered assigns is the registered owner of the above indicated number of Warrants, each Warrant entitling such registered owner to purchase, at any time after 5:00 p.m New York City time on __________, ____, and on or before 5:00 p.m New York City time on ____________, ____, ______ shares(s) of [insert title of Preferred Stock or Depository Shares ("Warrant Securities") of ASARCO Incorporated (the "Company"), on the 21 Page 2 following basis.1/ [During the period from ________, ____ through and including ____________, ____, each Warrant shall entitle the Holder thereof, subject to the provisions of this Agreement, to purchase from the Company _____ Warrant Security(ies) at the exercise price of $____; during the period from _________, ____ through and including ________, ____, each Warrant shall entitle the Holder thereof, subject to the provisions of this Agreement, to purchase from the Company ______ Warrant Security(ies) at the exercise price of $_____ (the "Exercise Price"). The Holder of this Warrant Certificate may exercise the Warrants evidenced hereby, in whole or in part, by surrendering this Warrant Certificate, with the purchase form set forth hereon duly completed, accompanied by payment in full, in lawful money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds or by bank wire transfer in immediately available funds], the Exercise Price for each Warrant exercised, to the Warrant Agent (as hereinafter defined), at the corporate trust office of [name of Warrant Agent], or its successor as warrant agent (the "Warrant Agent") [or at _____________], at the addresses specified on the reverse hereof and upon compliance with and subject to the conditions set forth herein and in the Warrant Agreement (as hereinafter defined). The term "Holder" as used herein shall mean [If Offered Securities with Warrants which are not immediately detachable -- Prior to _______, ____ (the "Detachable Date"), the registered owner of the Company's [title of Offered Securities] to which such Warrant Certificate was initially attached, and after such Detachable Date,] the person in whose name at the time such Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose pursuant to Section 3.01. Any whole number of Warrants evidenced by this Warrant Certificate may be exercised to purchase Warrant Securities. Upon any exercise of fewer than all of the Warrants evidenced by this Warrant Certificate, there shall be issued to the registered owner hereof a new Warrant - --------------------- 1/ Complete and modify the following provisions as appropriate to reflect the terms of the Warrants. 22 Page 3 Certificate evidencing the number of Warrants remaining unexercised. This Warrant Certificate is issued under and in accordance with the Warrant Agreement dated as of ___________, ____ (the "Warrant Agreement"), between the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all of which terms and provisions the holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement are on file at the above-mentioned office of the Warrant Agent [and at ___________]. [If Offered Securities with Warrants which are not immediately detachable -- Prior to ___________, ____ (the "Detachable Date"), this Warrant Certificate may be exchanged or transferred only together with the [title of Offered Security] (the "Offered Security") to which this Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, an exchange or transfer of such Offered Security. Additionally, on or prior to the Detachable Date, each transfer of such Offered Security on the register of the Offered Securities shall operate also to transfer this Warrant Certificate. After the Detachable Date, this] [If Offered Securities with Warrants which are immediately detachable or Warrants alone--This] Warrant Certificate, and all rights hereunder, may be transferred when surrendered at the corporate trust office of the Warrant Agent [or _____] by the registered owner or his assigns, in person or by an attorney duly authorized in writing, in the manner and subject to the limitations provided in the Warrant Agreement. [If Offered Securities with Warrants which are not immediately detachable -- Except as provided in the immediately preceding paragraph, after] [If Offered Securities with Warrants which are immediately detachable or Warrants alone -- After] authentication by the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the corporate trust office of the Warrant Agent [or at ___________] for Warrant Certificates representing the seem aggregate number of Warrants. 23 Page 4 This Warrant Certificate shall not entitle the registered owner hereof to any of the rights of a stockholder, including, without limitation, the right to receive dividends. Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. This Warrant Certificate shall not be valid obligatory for any purpose until authenticated by the Warrant Agent. IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly executed. Dated: ___________________, ____ ASARCO INCORPORATED By: ---------------------------- Name: Title: Attest: - ------------------------- Countersigned: - ------------------------- As Warrant Agent By: ---------------------- Authorized Signature 24 Page 5 [REVERSE] [FORM OF WARRANT CERTIFICATE] (Instructions for Exercise of Warrants) To exercise any Warrants evidenced hereby, the Holder of this Warrant Certificate must pay [in cash or by certified check or official bank check in New York Clearing House funds or by bank wire transfer in immediately available funds], the Exercise Price in full for each of the Warrants exercised, to _________________, Corporate Trust Department, ______________, Attn: [or _________________], which payment should specify the name of the Holder of this Warrant Certificate and the number of Warrants exercised by such Holder. In addition, the Holder of this Warrant Certificate should complete the information required below and present in person or mail by registered mail this Warrant Certificate to the Warrant Agent at the addresses set forth below. [FORM OF EXERCISE] (To be executed upon exercise of Warrants) The undersigned hereby irrevocably elects to exercise Warrants, represented by this Warrant Certificate, to purchase _______ shares of [insert title of Preferred Stock or Depository Shares], without par value (" Warrant Securities") of ASARCO Incorporated and represents that he has tendered payment for such Warrant Securities [in cash or by certified check or official bank check in New York Clearing House funds or by bank wire transfer in immediately available funds] to the order of ASARCO Incorporated, c/o _______________, in the amount of $________ in accordance with the terms hereof. The undersigned requests that said Warrant Securities be registered in such names and delivered, all as specified in accordance with the instructions set forth below. If said number of shares of Warrant Securities is less than all of the Warrant Securities purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of the Warrants evidenced hereby be issued and delivered to the undersigned unless otherwise specified in the instructions below. 25 Page 6 Dated: Name ------------------ (Please Print) - -------------------------- (Insert Social Security or Other Identifying Number of Holder) Address --------------- ---------------------- ---------------------- Signature (Signature must con- form in all respects to name of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a bank, trust company or member broker of the New York, Midwest or Pacific Stock Exchange) This Warrant may be exercised at the following addresses: By hand at ------------------------ ------------------------ ------------------------ ------------------------ By mail at ------------------------ ------------------------ ------------------------ ------------------------ (Instructions as to form and delivery of certificates representing Warrant Securities and/or Warrant Certificates): 26 Page 7 [FORM OF ASSIGNMENT] (TO BE EXECUTED TO TRANSFER THE WARRANT CERTIFICATE) FOR VALUE RECEIVED __________________ hereby sells, assigns and transfers unto Please insert social security or other identifying number -------------------- - --------------------------- Please print name and address including zip code __________________________________________________________ the right represented by the within Warrant Certificate and does hereby irrevocably constitute and appoint _____________, Attorney, to transfer said Warrant Certificate on the books of the Warrant Agent with full power of substitution. Dated: ------------------------------ Signature (Signature must conform in all respects to name of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a bank, trust company or member broker of the New York, Midwest or Pacific Stock Exchange) Signature Guaranteed: 27 Page 8 - ------------------------- EX-4.5 7 FORM OF DEBT WARRANT AGREEMENT 1 EXHIBIT 4.5 FORM OF DEBT WARRANT AGREEMENT ----------------------------------------------------------- ASARCO INCORPORATED and --------------------- As Warrant Agent WARRANT AGREEMENT Dated as of ---------------,----- ----------------------------------------------------------- 2 THIS WARRANT AGREEMENT, dated as of ______________, ____, between ASARCO Incorporated, a corporation duly organized and existing under the laws of the State of New Jersey (the "Company") and _______________, a [corporation] [national banking association] organized and existing under the laws of ______________, as warrant agent (herein called the "Warrant Agent"). WHEREAS, the Company has entered into an Indenture dated as of October 1, 1994 (the "Indenture"), with __________________, a _________________ corporation, as trustee, herein called the "Trustee"), providing for the issuance from time to time of its unsecured debentures, notes or other evidences of senior indebtedness, to be issued in one or more series as provided in the Indenture; WHEREAS, the Company proposes to sell [If offered securities and warrants -- [title of offered securities being offered] (the "Offered Debt Securities") with] warrant certificates (such warrant certificates and other warrant certificates issued pursuant to this Agreement herein called the "Warrant Certificates") evidencing one or more warrants (the "Warrants" or, individually, a "Warrant") representing the right to purchase [title of Debt Securities purchasable through the exercise of warrants] (the "Warrant Debt Securities"); and WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, exchange, exercise and replacement of the Warrant Certificates, and in this Agreement wishes to set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which they may be issued, exchanged, exercised and replaced. NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows: 3 Page 2 ARTICLE I. ISSUANCE, EXECUTION AND COUNTERSIGNATURE OF WARRANT CERTIFICATES Section 1.01 Issuance of Warrant Certificates. [If Warrants alone -- Upon issuance, each Warrant Certificate shall evidence one or more Warrants.] [If Offered Debt Securities and Warrants -- Warrant Certificates shall be initially issued in units with the Offered Debt Securities and shall not be separately transferable [before ____________, 19__ (the "Detachable Date"]. Each Warrant Certificate included in each such unit shall evidence an aggregate of ___________ Warrants.] Each Warrant evidenced thereby shall represent the right, subject to the provisions contained herein and therein, to purchase Warrant Debt Securities in the aggregate principal amount of $_____________. Section 1.02 Form of Warrant Certificates. The Warrant Certificates (including the Form[s] of Exercise and Assignment to be set forth on the reverse thereof) shall be in substantially the form set forth in Exhibit A hereto, shall be printed, lithographed or engraved on steel engraved borders (or in any other manner determined by the officers executing such Warrant Certificates, as evidenced by their execution of such Warrant Certificates) and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on which the Warrant Certificates may be listed or as may, consistently herewith, be determined by the officers executing such Warrant Certificates, as evidenced by their execution of the Warrant Certificates. [Global Warrant Certificate?] Section 1.03 Execution and Countersignature of Warrant Certificates. The Warrant Certificates shall be executed on behalf of the Company by its Chairman of the Board, President, Chief Financial Officer or its Treasurer attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Warrant Certificates may be manual or facsimile. 4 Page 3 Warrant Certificates evidencing the right to purchase an aggregate principal amount not exceeding $________ (except as provided in Sections 1.04, 2.03(c), 3.01 and 3.02) may be executed by the Company and delivered to the Warrant Agent upon the execution of this Warrant Agreement or from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates duly executed on behalf of the Company, authenticate Warrant Certificates evidencing Warrants representing the right to purchase up to $________ aggregate principal amount of Warrant Debt Securities and shall deliver such Warrant Certificates to or upon the order of the Company. Subsequent to such original issuance of the Warrant Certificates, the Warrant Agent shall authenticate a Warrant Certificate only if the Warrant Certificate is issued in exchange or substitution for one or more previously authenticated Warrant Certificates or in connection with their transfer, as hereinafter provided. Each Warrant Certificate shall be dated the date of its authentication by the Warrant Agent. No Warrant Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been authenticated by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed by the Company shall be conclusive evidence, and the only evidence, that the Warrant Certificate so authenticated has been duly issued hereunder. Warrant Certificates bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Warrant Certificates or did not hold such offices at the date of such Warrant Certificates. Section 1.04 Temporary Warrant Certificates. Pending the preparation of definitive Warrant Certificates, the Company may execute, and upon the order of the Company the Warrant Agent shall authenticate and deliver, temporary Warrant Certificates which are printed, lithographed, typewritten, mimeographed or otherwise produced substantially 5 Page 4 of the tenor of the definitive Warrant Certificates in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Warrant Certificates may determine, as evidenced by their execution of such Warrant Certificates. If temporary Warrant Certificates are issued, the Company will cause definitive Warrant Certificates to be prepared without unreasonable delay. After the preparation of definitive Warrant Certificates, the temporary Warrant Certificates shall be exchangeable for definitive Warrant Certificates upon surrender of the temporary Warrant Certificates at the corporate trust office of the Warrant Agent [or ___], without charge to the Holder (as defined in Section 1.06 below). Upon surrender for cancellation of any one or more temporary Warrant Certificates the Company shall execute and the Warrant Agent shall authenticate and deliver in exchange therefor definitive Warrant Certificates representing the same aggregate number of Warrants. Until so exchanged, the temporary Warrant Certificates shall in all respects be entitled to the same benefits under this Agreement as definitive Warrant Certificates. Section 1.05 Payment of Taxes. The Company will pay all stamp taxes and other duties, if any, to which, under the laws of the United States of America or any State or political subdivision thereof, this Agreement or the original issuance of the Warrant Certificates may be subject. Section 1.06 Definition of Holder. The term "Holder" as used herein shall mean [If Offered Debt Securities and Warrants which are not immediately detachable -- Prior to the Detachable Date, the registered owner of the Offered Security to which such Warrant Certificate was initially attached, and, after such Detachable Date,] the person in whose name at the time such Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose pursuant to Section 3.01. [If Offered Debt Securities and Warrants which are not immediately detachable -- Prior to the Detachable Date, the Company will, or will cause the registrar of the Offered Debt Securities to make available to the Warrant Agent current information as to Holders of the Offered Debt Securities.] 6 Page 5 ARTICLE II. WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS Section 2.01 Warrant Price.1/ During the period from _____________, ____ through and including ____________, ____, each Warrant shall entitle the Holder thereof, subject to the provisions of this Agreement, to purchase from the Company the principal amount of Warrant Debt Securities stated in the Warrant Certificate at the exercise price of _____% of the principal amount thereof [plus accrued amortization, if any, of the original issue discount of the Warrant Debt Securities] [plus accrued interest, if any, from the most recent date from which interest shall have been paid on the Warrant Debt Securities or, if no interest shall have been paid on the Warrant Debt Securities, from _____________, ____]. During the period from _______________, ____ through and including ____________, ____, each Warrant shall entitle the Holder thereof, subject to the provisions of this Agreement, to purchase from the Company the principal amount of Warrant Debt Securities stated in the Warrant Certificate at the exercise price of _______% of the principal amount thereof [plus accrued amortization, if any, of the original issue discount of the Warrant Debt Securities] [plus accrued interest, if any, from the most recent date from which interest shall have been paid on the Warrant Debt Securities or, if no interest shall have been paid on the Warrant Debt Securities, from __________, ____]. [In each case, the original issue discount ($_____________ for each $1,000 principal amount of Warrant Debt Securities) will be amortized at a $______ annual rate, computed on a[n] [semi-] annual basis [using a 360-day year consisting of twelve 30-day months].] Such exercise price of each Warrant is referred to in this Agreement as the "Exercise Price." Section 2.02 Duration of Warrants. Any Warrant evidenced by a Warrant Certificate may be exercised at any time, as specified herein, on or after [the date thereof] [_________, 19__] and at or before 5:00 p.m. New York City time on __________, 19__ (the "Expiration Date"). Each - ---------------------------------- 1/ Complete and modify the provisions of this Section as appropriate to reflect the exact terms of the Warrants and the Warrant Debt Securities. 7 Page 6 Warrant not exercised at or before 5:00 p.m. New York City time on the Expiration Date shall become void, and all rights of the Holder of the Warrant Certificate evidencing such Warrant under this Agreement or otherwise shall cease. Section 2.03 Exercise of Warrants. (a) During the period specified in Section 2.02, any whole number of Warrants may be exercised by surrendering the Warrant Certificate evidencing such Warrants at the place or at the places set forth in the Warrant Certificate, with the purchase form set forth in the Warrant Certificate duly executed, accompanied by payment in full, in lawful money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds], of the Exercise Price for each Warrant exercised. The date on which payment in full of the Exercise Price for a Warrant and the duly executed and completed Warrant Certificate are received by the Warrant Agent shall be deemed to be the date on which such Warrant is exercised. The Warrant Agent shall deposit all funds received by it as payment for the exercise of Warrants to the account of the Company maintained with it for such purpose and shall advise the Company by telephone at the end of each day on which such a payment is received of the amount so deposited to its account. The Warrant Agent shall promptly confirm such telephonic advice to the Company in writing. (b) The Warrant Agent shall from time to time, as promptly as practicable after the exercise of any Warrants in accordance with the terms and conditions of this Agreement and the Warrant Certificates, advise the Company of (i) the number of Warrants so exercised, (ii) the instructions of each Holder of the Warrant Certificates evidencing such Warrants with respect to delivery of the Warrant Debt Securities to which such Holder is entitled upon such exercise, and instructions of such Holder as to delivery of Warrant Certificates evidencing the balance, if any, of the Warrants remaining after such exercise, and (iii) such other information as the Company shall reasonably require. (c) As soon as practicable after the exercise of any Warrants, the Company shall issue, pursuant to the Indenture, in authorized denominations, to or upon the order 8 Page 7 of the Holder of the Warrant Certificate evidencing such Warrants, the Warrant Debt Security or Warrant Debt Securities to which such Holder is entitled in [fully registered form, registered in such name or names as may be directed by such holder] [bearer form]; and, if fewer than all of the Warrants evidenced by such Warrant Certificate were exercised, the Company shall execute and an authorized officer of the Warrant Agent shall manually authenticate and deliver a new Warrant Certificate evidencing the number of Warrants remaining unexercised. [Unless otherwise instructed by the Company, Warrant Debt Securities in bearer form shall be delivered to or upon the order of the Holder of such Warrant Certificate only outside the United States, its territories and possessions and all areas subject to its jurisdiction.]2/ (d) The Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer involved in the issuance of the Warrant Debt Securities; and in the event that any such transfer is involved, the Company shall not be required to issue or deliver any Warrant Debt Securities until such tax or other charge shall have been paid or it has been established to the Company's satisfaction that no such tax or other charge is due. ARTICLE III. [REGISTRATION]; EXCHANGE, TRANSFER AND SUBSTITUTION OF WARRANT CERTIFICATES Section 3.01 [Registration]; Exchange and Transfer of Warrant Certificates. If registered Warrants -- The Warrant Agent shall keep, at its corporate trust office [and at _________], books in which, subject to such reasonable regulations as it may prescribe, it shall register Warrant Certificates and transfers of outstanding Warrant Certificates. - ---------------------------------- 2/ Add additional restrictions required to comply with the TEFRA D Rules relating to bearer securities. 9 Page 8 [If Offered Debt Securities and Warrants which are immediately detachable -- Prior to the Detachable Date, each Warrant Certificate may be exchanged or transferred only together with the Offered Debt Security to which such Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, an exchange or transfer of such Offered Debt Security. Additionally, on or prior to the Detachable Date, each transfer of an Offered Debt Security [on the register of the Offered Debt Securities] shall operate also to transfer the Warrant Certificate or Certificates to which such Offered Debt Security was initially attached. After the Detachable Date, upon] [If Offered Debt Securities and Warrants which are immediately detachable or if Warrants alone -- upon] surrender at the corporate trust office of the Warrant Agent [or _______] of Warrant Certificates properly endorsed [or accompanied by appropriate instruments of transfer] and accompanied by written instructions for [transfer or] exchange, all in form satisfactory to the Company and the Warrant Agent, such Warrant Certificates may be exchanged for other Warrant Certificates or may be transferred in whole or in part; provided that Warrant Certificates issued in exchange for or upon transfer of surrendered Warrant Certificates shall evidence the same aggregate number of Warrants as the Warrant Certificates so surrendered. No service charge shall be made for any exchange or transfer of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any stamp or other tax or governmental charge that may be imposed in connection with any such exchange or transfer. Whenever any Warrant Certificates are so surrendered for exchange or transfer, the Company shall execute and an authorized officer of the Warrant Agent shall manually authenticate and deliver to the person or persons entitled thereto a Warrant Certificate or Warrant Certificates as so requested. The Warrant Agent shall not be required to effect any exchange or transfer which would result in the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a number of full Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any exchange or transfer of Warrant Certificates shall evidence the same obligations, and be entitled to the same benefits under this Agreement, as the Warrant Certificates surrendered for such exchange or transfer. 10 Page 9 Section 3.02 Mutilated, Destroyed, Lost or Stolen Warrant Certificates. If any mutilated Warrant Certificate is surrendered to the Warrant Agent, the Company shall execute and an officer of the Warrant Agent shall manually authenticate and deliver in exchange therefor a new Warrant Certificate of like tenor and bearing a number not contemporaneously outstanding. If there shall be delivered to the Company and the Warrant Agent (i) evidence to their satisfaction of the destruction, loss or theft of any Warrant Certificate and of the ownership thereof 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 Warrant Agent that such Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute and upon its request an officer of the Warrant Agent shall manually authenticate and deliver, in lieu of any such destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of like tenor and bearing a number not contemporaneously outstanding. Upon the issuance of any new Warrant Certificate 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 Warrant Agent) connected therewith. Every new Warrant Certificate issued pursuant to this Section in lieu of any destroyed, lost or stolen Warrant Certificate shall evidence an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates 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 Warrant Certificates. Section 3.03 Persons Deemed Owners. [If Offered Debt Securities and Warrants which are not immediately detachable -- Prior to the Detachable Date, the Company, the Warrant Agent and all other persons may treat the owner of any Offered Debt Security as the owner of the Warrant Certificates initially attached thereto for any purpose and as the person entitled to exercise the rights represented by 11 Page 10 the Warrants evidenced by such Warrant Certificates, any notice to the contrary notwithstanding. After the Detachable Date,] and prior to due presentment of a Warrant Certificate for registration of transfer, the Company, the Warrant Agent and all other persons may treat the Holder as the owner thereof for any purpose and as the person entitled to exercise the rights represented by the Warrants evidenced thereby, any notice to the contrary notwithstanding. Section 3.04 Cancellation of Warrant Certificates. Any Warrant Certificate surrendered for exchange, transfer or exercise of the Warrants evidenced thereby shall, if surrendered to the Company, be delivered to the Warrant Agent, and all Warrant Certificates surrendered or so delivered to the Warrant Agent shall be promptly cancelled by it and shall not be reissued and, except as expressly permitted by this Agreement, no Warrant Certificate shall be issued hereunder in lieu or in exchange thereof. The Company may at any time deliver to the Warrant Agent for cancellation any Warrant Certificates previously issued hereunder which the Company may have acquired in any manner whatsoever, and all Warrant Certificates so delivered shall be promptly cancelled by the Warrant Agent. All cancelled Warrant Certificates held by the Warrant Agent shall be destroyed by it, unless the Company requests by written order that such cancelled Certificates be returned to the Company. ARTICLE IV. OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES Section 4.01 No Rights as Holders of Warrant Debt Securities Conferred by Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby shall entitle the Holder thereof to any of the rights of a Holder of the Warrant Debt Securities, including, without limitation, the right to receive the payment of principal of (or premium, if any) or interest, if any, on the Warrant Debt Securities or to enforce any of the covenants in the Indenture. Section 4.02 Holder of Warrant Certificate May Enforce Rights. Notwithstanding any of the provisions of 12 Page 11 this Agreement, any Holder of any Warrant Certificate, without the consent of the Warrant Agent, any stockholder or the Holder of any other Warrant Certificate, may, in his own behalf and for his own benefit, enforce, and may institute and maintain any suit, action or proceeding against the Company suitable to enforce or otherwise in respect of, his right to exercise the Warrant or Warrants evidenced by his Warrant Certificate in the manner provided in the Warrant Certificates and in this Agreement. ARTICLE V. CONCERNING THE WARRANT AGENT Section 5.01 Warrant Agent. The Company hereby appoints _____________ as Warrant Agent of the Company in respect of the Warrants and the Warrant Certificates upon the terms and subject to the conditions herein set forth, and ________ hereby accepts such appointment. The Warrant Agent shall have the power and authority granted to and conferred upon it in the Warrant Certificates and hereby and such further power and authority to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the terms and provisions with respect to such power and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions hereof. Section 5.02 Conditions of Warrant Agent's Obligations. The Warrant Agent accepts its obligations herein set forth, upon the terms and conditions hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders from time to time of the Warrant Certificates shall be subject: (a) Compensation and Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including counsel fees) incurred by the Warrant Agent in connection with the services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss, liability or expense incurred without 13 Page 12 negligence or bad faith on the part of the Warrant Agent, arising out of or in connection with its acting as such Warrant Agent hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance at any time of its powers or duties hereunder. The obligations of the Company under this subsection (a) shall survive the exercise of the Warrant Certificates and the resignation or removal of the Warrant Agent. (b) Agent for the Company. In acting under this Warrant Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the Warrant Certificates. (c) Counsel. The Warrant Agent may consult with counsel, which may include counsel for the Company, and the written advice of such 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. (d) Documents. The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by it in reliance upon any Warrant Certificates, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. (e) Certain Transactions. The Warrant Agent, any of its officers, directors and employees, or any other agent of the Company, in its individual or any other capacity, may become the owner of, or acquire any interest in, any Warrant Certificates, with the same rights that it would have if it were not such Warrant Agent, officer, director, employee or other agent, and, to the extent permitted by applicable law, it may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of holders of Warrant Debt Securities or other obligations of the Company as freely as if it were not such Warrant Agent. 14 Page 13 (f) No Liability for Interest. The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates. (g) No Liability for Invalidity. The Warrant Agent shall not incur any liability with respect to the validity of this Agreement or any of the Warrant Certificates. (h) No Responsibility for Representations. The Warrant Agent shall not be responsible for any of the Recitals or representations contained herein or in the Warrant Certificates (except as to the Warrant Agent's Certificate of Authentication thereon), all of which are made solely by the Company. (i) No Implied Obligations. The Warrant Agent shall be obligated to perform such duties as are herein and in the Warrant Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds of the Warrant Certificates or any exercise of the Warrants evidenced thereby. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt of any written demand from a Holder of a Warrant Certificate with respect to such default, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided 15 Page 14 in Section 6.04 hereof, to make any demand upon the Company. Section 5.03 Resignation, Removal and Appointment of Successor. (a) The Company agrees, for the benefit of the Holders from time to time of the Warrant Certificates, that there shall at all times be a Warrant Agent hereunder until all of the Warrant Certificates are no longer exercisable. (b) The Warrant Agent may at any time resign as such agent by giving written notice to the Company of such intention on its part, specifying the date on which it desires its resignation to become effective; provided that, without the consent of the Company, such date shall not be less than [three months] after the date on which such notice is given. The Warrant Agent hereunder may be removed at any time by the filing with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the date on which the Company expects such removal to become effective. Such resignation or removal shall take effect upon the appointment by the Company of a successor Warrant Agent (which shall be a bank or trust company organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia and authorized under such laws to exercise corporate trust powers) by an instrument in writing filed with such successor Warrant Agent and the acceptance of such appointment by such successor Warrant Agent pursuant to Section 5.03(d). (c) In case at any time the Warrant Agent shall resign, or be removed, or shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors or consent to the appointment of a receiver or custodian of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they mature, or if a receiver or custodian of it or of all or any substantial part of its property shall be appointed, or if an order of any court shall be entered approving any petition filed by or against it under the provisions of any applicable bankruptcy or similar law, or if any public officer shall have taken charge or control of the 16 Page 15 Warrant Agent or of its property or affairs, a successor Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an instrument filed with the successor Warrant Agent. Upon appointment as aforesaid of a successor Warrant Agent acceptance by the latter of such appointment, the Warrant Agent so superseded shall cease to be Warrant Agent hereunder. (d) Any successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all monies, securities and other property on deposit with or held by such predecessor, as Warrant Agent hereunder. (e) Any corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Warrant Agent, provided that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto. ARTICLE VI. MISCELLANEOUS [Section 6.01 Consolidations and Mergers of the Company and Sales, Leases and Conveyances Permitted Subject to Certain Conditions. The Company may consolidate with, or sell, lease or convey all or substantially all of its assets to, or merge with or into any other corporation, provided 17 Page 16 that in any such case, (i) either the Company shall be the continuing corporation, or the successor corporation shall be a corporation organized and existing under the laws of the United States of America or a State thereof and such successor corporation shall expressly assume the obligations of the Company hereunder.] Section 6.02 Rights and Duties of Successor Corporation. In case of any such consolidation, merger, sale, lease or conveyance and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Company, with the same effect as if it had been named herein, and the predecessor corporation, except in the event of a lease, shall be relieved of any further obligation under this Agreement and the Warrants. Such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of the Company, any or all of the Warrant Debt Securities issuable pursuant to the terms hereof. Section 6.03 Amendment. This Agreement may be amended by the parties hereto, without the consent of the Holder of any Warrant Certificate, for the purpose of curing any ambiguity, or curing, correcting or supplementing any defective provision contained herein, or making such provisions in regard to matters or questions arising under this Agreement as the Company may deem necessary or desirable; provided that such action shall not adversely affect the interests of the Holders of the Warrant Certificates in any material respect. The Warrant Agent may, but shall not be obligated to, enter into any amendment to this Agreement which affects the Warrant Agent's own rights, duties or immunities under this Agreement or otherwise. Section 6.04 Notices and Demands to the Company and Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Company by the Holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward such notice or demand to the Company. Section 6.05 Addresses. Any communications from the Company to the Warrant Agent with respect to this Agreement shall be addressed to _____________, Attention: ____________________ and any communications from the Warrant 18 Page 17 Agent to the Company with respect to this Agreement shall be addressed to ASARCO Incorporated, 180 Maiden Lane, New York, New York 10038, Attention: ________________, with a copy to the ___________________ (or such other address as shall be specified in writing by the Warrant Agent or by the Company). Section 6.06 Governing Law. This Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York. Section 6.07 Delivery of Prospectus. The Company will furnish to the Warrant Agent sufficient copies of a prospectus, appropriately supplemented, relating to the [ ] (the "Prospectus"), and the Warrant Agent agrees that, upon the exercise of any Warrant Certificate, the Warrant Agent will deliver to the person designated to receive a Warrant Debt Security, prior to or concurrently with the delivery of such securities, a Prospectus. Section 6.08 Obtaining of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and keep effective any and all permits, consents and approvals of governmental agencies and authorities and securities acts filings under United States Federal and State laws (including, without limitation, the maintenance of the effectiveness of a registration statement in respect of the Warrant Debt Securities under the Securities Act of 1933), which may be or become required in connection with exercise of the Warrant Certificates and the original issuance and delivery of the Warrant Debt Securities in connection with such exercise. Section 6.09 Persons Having Rights under Warrant Agreement. Nothing in this Agreement expressed or implied and nothing that may be inferred from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the Company, the Warrant Agent and the Holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise or agreement hereof; and all covenants, conditions, stipulations, promises and agreements in this Agreement contained shall be for the sole and exclusive benefit of the 19 Page 18 Company and the Warrant Agent and their successors and of the Holders of the Warrant Certificates. Section 6.10 Headings. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. Section 6.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original; but such counterparts shall together constitute but one and the same instrument. Section 6.12 Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office of the Warrant Agent [and at ________] for inspection by the Holder of any Warrant Certificate. The Warrant Agent may require such Holder to submit his Warrant Certificate for inspection by it. 20 Page 19 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, and their respective corporate seal to be hereunto affixed and attested, all as of the day and year first above written. ASARCO INCORPORATED By: ---------------- Name: Title: Attest: - ---------------------------- [Assistant] Secretary Attest: [Assistant] Secretary [WARRANT AGENT] By: ---------------- Name: Title: Attest: - ---------------------------- [Assistant] Secretary 21 EXHIBIT A [FORM OF WARRANT CERTIFICATE] [Face] Form of Legend if Offered Debt Securities [Prior to ___________, with Warrants which are not immediately this Warrant Certificate detachable: may be transferred or exchanged if and only if the [Title of Debt Security] to which it was initially attached is so transferred or exchanged.] Form of Legend if Warrants are not [Prior to ___________, immediately exercisable: Warrants evidenced by this Warrant Certificate cannot be exercised.] EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN VOID AFTER 5:00 P.M. NEW YORK CITY TIME ON --------, 199-- ASARCO INCORPORATED Warrant Certificate representing Warrants to purchase [Title of Warrant Debt Securities] as described herein. -------------------- No. _____________ Warrants This certifies that [the bearer is the] [____________ or registered assigns is the registered] owner of the above indicated number of Warrants, each Warrant entitling such [bearer [If Offered Debt Securities with Warrants which are not immediately detachable -- , subject to the bearer qualifying as a "Holder" of this Warrant Certificate, as hereinafter defined]] [registered owner] to purchase, at any time [after 5:00 p.m. New York 22 Page 2 City time on __________, ____, and] on or before 5:00 p.m. New York City time on __________, ____, $ __________ principal amount of [Title of Warrant Debt Securities] (the "Warrant Debt Securities") of ASARCO Incorporated (the "Company"), issued or to be issued under the Indenture hereinafter defined), on the following basis.1/ [During the period from __________, ____ through and including __________, ____, each Warrant shall entitle the Holder thereof, subject to the provisions of this Agreement, to purchase from the Company the principal amount of Warrant Debt Securities stated in the Warrant Certificate at the exercise price of __% of the principal amount thereof [plus accrued amortization, if any, of the original issue discount of the amortization, if any, of the original issue discount of the Warrant Debt Securities) (plus accrued interest, if any, from the most recent date from which interest shall have been paid on the Warrant Debt Securities or, if no interest shall have been paid on the Warrant Debt Securities, from __________, ____]; during the period from __________, ____ through and including __________, ____, each Warrant shall entitle the Holder thereof, subject to the provisions of this Agreement, to purchase from the Company the principal amount of Warrant Debt Securities stated in the Warrant Certificate at the exercise price of __% of the principal amount thereof [plus accrued amortization, if any, of the original issue discount of the Warrant Debt Securities] [plus accrued interest, if any, from the most recent date from which interest shall have been paid on the Warrant Debt Securities or, if no interest shall have been paid on the Warrant Debt Securities, from __________, ____] in each case, the original issue discount ($__________ for each $1,000 principal amount of Warrant Debt Securities) will be amortized at a __% annual rate, computed on a[n] [semi]-annual basis[, using a 360-day year consisting of twelve 30-day months] (the "Exercise Price"). The Holder of this Warrant Certificate may exercise the Warrants evidenced hereby, in whole or in part, by surrendering this Warrant Certificate, with the purchase form set forth hereon duly completed, accompanied by payment in full, in lawful money of the United - ---------------------------------- 1/ Complete and modify the following provisions as appropriate to reflect the terms of the Warrants and the Warrant Debt Securities. 23 Page 3 States of America, [in cash or by certified check or official bank check in New York Clearing House funds or by bank wire transfer in immediately available funds], the Exercise Price for each Warrant exercised, to the Warrant Agent (as hereinafter defined), at the corporate trust office of [name of Warrant Agent], or its successor as warrant agent (the "Warrant Agent") [or at __________,], at the addresses specified on the reverse hereof and upon compliance with and subject to the conditions set forth herein and in the Warrant Agreement (as hereinafter defined). This Warrant Certificate may be exercised only for the purchase of Warrant Debt Securities in the principal amount of [$1,000] or any integral multiple thereof. The term "Holder" as used herein shall mean [If Offered Debt Securities with Warrants which are not immediately detachable -- , prior to __________, ____ (the "Detachable Date"), the [bearer] [registered owner] of the Company's [title of Offered Debt Securities] to which such Warrant Certificate was initially attached, and after such Detachable Date,] [the bearer of such Warrant Certificate] [the person in whose name at the time such Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose pursuant to Section 3.01]. Any whole number of Warrants evidenced by this Warrant Certificate may be exercised to purchase Warrant Debt Securities in registered form. Upon any exercise of fewer than all of the Warrants evidenced by this Warrant Certificate, there shall be issued to the [bearer] [registered owner] hereof a new Warrant Certificate evidencing the number of Warrants remaining unexercised. This Warrant Certificate is issued under and in accordance with the Warrant Agreement dated as of _________, ____ (the "Warrant Agreement"), between the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all of which terms and provisions the holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement are on file at the above-mentioned office of the Warrant Agent [and at __________]. 24 Page 4 The Warrant Debt Securities to be issued and delivered upon the exercise of Warrants evidenced by this Warrant Certificate will be issued under and in accordance with an Indenture, dated as of October 1, 1994 (the "Indenture"), between the Company and Chemical Bank, a New York banking corporation, as trustee (such trustee, and any successors to such trustee, the "Trustee") and will be subject to the terms and provisions contained in the Warrant Debt Securities and in the Indenture. Copies of the Indenture, including the form of the Warrant Debt Securities, are on file at the corporate trust office of the Trustee [and at ________]. [If Offered Debt Securities with Warrants which are not immediately detachable -- Prior to __________, 19__ (the "Detachable Date"), this Warrant Certificate may be exchanged or transferred only together with the [title of Offered Debt Security] (the "Offered Debt Security") to which this Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, an exchange or transfer of such Offered Debt Security. Additionally, on or prior to the Detachable Date, each transfer of such Offered Debt Security on the register of the Offered Debt Securities shall operate also to transfer this Warrant Certificate. After the Detachable Date, this] [If Offered Debt Securities with Warrants which are immediately detachable or Warrants alone -- This] Warrant Certificate, and all rights hereunder, may be transferred [If bearer Warrants -- by delivery and the Company and the Warrant Agent may treat the bearer hereof as the owner for all purposes] [If registered Warrants -- when surrendered at the corporate trust office of the Warrant Agent [or __________] by the registered owner or his assigns, in person or by an attorney duly authorized in writing, in the manner and subject to the limitations provided in the Warrant Agreement.] [If Offered Debt Securities with Warrants which are not immediately detachable -- Except as provided in the immediately preceding paragraph, after] [If Offered Debt Securities with Warrants which are immediately detachable or Warrants alone -- After] authentication by the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the corporate trust office of the Warrant Agent [or at 25 Page 5 __________] for Warrant Certificates representing the same aggregate number of Warrants. This Warrant Certificate shall not entitle the [bearer] [registered owner] hereof to any of the rights of a [registered] [holder] of the Warrant Debt Securities, including, without limitation, the right to receive payments of principal of (and premium, if any) or interest, if any, on the Warrant Debt Securities or to enforce any of the covenants of the Indenture. Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. This Warrant Certificate shall not be valid or obligatory for any purpose until authenticated by the Warrant Agent. 26 Page 6 IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly executed under its corporate seal. Dated: ----------, ---- ASARCO INCORPORATED By: ---------------------------------- Name: Title: Attest: - ---------------------------- Countersigned: - ---------------------------- As Warrant Agent By: ------------------------- Authorized Signature 27 Page 7 [REVERSE] [FORM OF WARRANT CERTIFICATE] (Instructions for Exercise of Warrants) To exercise any Warrants evidenced hereby, the Holder of this Warrant Certificate must pay (in cash or by certified check or official bank check in New York Clearing House funds or by bank wire transfer in immediately available funds), the Exercise Price in full for each of the Warrants exercised, to __________, Corporate Trust Department, __________, Attn: __________ [or __________], which payment should specify the name of the Holder of this Warrant Certificate and the number of Warrants exercised by such Holder. In addition, the Holder of this Warrant Certificate should complete the information required below and present in person or mail by registered mail this Warrant Certificate to the Warrant Agent at the addresses set forth below. [FORM OF EXERCISE] (To be executed upon exercise of Warrants.) The undersigned hereby irrevocably elects to exercise Warrants, represented by this Warrant Certificate, to purchase $__________ principal amount of the [Title of Warrant Debt Securities] (the "Warrant Debt Securities") of ASARCO Incorporated and represents that he has tendered payment for such Warrant Debt Securities [in cash or by certified check or official bank check in New York Clearing House funds or by bank wire transfer in immediately available funds] to the order of ASARCO Incorporated, c/o __________, in the amount of $__________ in accordance with the terms hereof. The undersigned requests that said principal amount of Warrant Debt Securities be in [bearer] [fully registered] form, in the authorized denominations, [registered in such names] and delivered, all as specified in accordance with the instructions set forth below. If said principal amount of Warrant Debt Securities is less than all of the Warrant Debt Securities purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of the Warrants evidenced hereby be issued and delivered to the undersigned unless otherwise specified in the instructions below. 28 Page 8 Dated: Name ----------------------------------- (Please Print) - --------------------------- (Insert Social Security or Other Identifying Number of Holder) Address --------------------------------- ---------------------------------------- Signature ------------------------------ [If registered warrant -- (Signature must conform in all respects to name of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a bank, trust company or member broker of the New York, Midwest or Pacific Stock Exchange.)] This Warrant may be exercised at the following addresses: By hand at ----------------------------- ----------------------------- ----------------------------- ----------------------------- By mail at ----------------------------- ----------------------------- ----------------------------- ----------------------------- (Instructions as to form and delivery of Warrant Debt Securities and/or Warrant Certificates): 29 Page 9 [If registered Warrant --] [FORM OF ASSIGNMENT] (TO BE EXECUTED TO TRANSFER THE WARRANT CERTIFICATE) FOR VALUE RECEIVED __________ hereby sells, assigns and transfers unto Please insert social security or other identifying number -------------------------------------- - ------------------------------ (Please print name and address including zip code) _____________________________________________________________________________ the right represented by the within Warrant Certificate and does hereby irrevocably constitute and appoint____________, Attorney, to transfer said Warrant Certificate on the books of the Warrant Agent with full power of substitution. Dated: -------------------------------------- Signature (Signature must conform in all respects to name of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a bank, trust company or member broker of the New York, Midwest or Pacific Stock Exchange.) Signature Guaranteed: - ------------------------------- 30 Page 10 CERTIFICATION AS TO NON-U.S. OWNERSHIP1/ [To be completed if Securities in bearer form are requested] This is to certify that as of the date hereof, the Warrant Debt Securities which are to be delivered to the undersigned in bearer form upon the exercise by the undersigned of this Warrant Certificate are not being acquired by or on behalf of, or for offer to resell or for resale to, a United States person, other than a financial institution, as defined in the Treasury Regulations under Section 165(j), that agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder. As used herein, "United States person" means a citizen or a resident of the United States of America, its territories, its possessions or any area subject to its jurisdiction ("United States"), or a corporation, partnership or other entity created or organized in or under the laws of the United States or any political subdivision thereof, or an estate or trust the income of which is subject to United States Federal income tax regardless of its source. Signature: ------------------------- - ------------------------- 1/ Add additional restrictions required to comply with the TEFRA D Rules relating to bearer securities. 31 Page 11 [Form of certificate to be given by person requesting delivery of bearer Warrant Debt Security upon exercise of Warrant] CERTIFICATE1/ ASARCO INCORPORATED [Title of Warrant Debt Securities] Issuable Upon Exercise of Warrants ("Warrant Debt Securities") TO: ASARCO Incorporated [Name of Warrant Agent], or Warrant Agent This certificate is submitted in connection with the exercise of the Warrant Certificate relating to the Warrant Debt Securities, by delivery to you of the Election to Purchase dated as of __________, ____. The undersigned hereby certifies that as of the date hereof, the Warrant Debt Securities which are to be delivered to the undersigned in bearer form upon the exercise by the undersigned of such Warrant Certificate are not being acquired by or on behalf of, or for offer to resell or for resale to, a United States person, other than a financial institution, as defined in the Treasury Regulations under Section 165(i), that agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder. As used herein, "United States person" means a citizen or a resident of the United States of America, its territories, its possessions or any area subject to its jurisdiction ("United States"), or a corporation, partnership or other entity created or organized in or under the laws of the United States or any - ---------------------- 1/ Add additional restrictions required to comply with the TEFRA D Rules relating to bearer securities. 32 Page 12 political subdivision thereof, or an estate or trust the income of which is subject to United States Federal income tax regardless of its source. Dated: ---------------------------------- Person Entitled to Delivery of Warrant Debt Securities Described Herein EX-4.6 8 FORM OF CURRENCY WARRANT AGREEMENT 1 EXHIBIT 4.6 FORM OF CURRENCY WARRANT AGREEMENT ------------------------------------------------ ASARCO INCORPORATED and -------------------- As Warrant Agent ------------------------------ WARRANT AGREEMENT dated as of ----------------- ---, ---- ------------------------------- UP TO ----------- CURRENCY [PUT/CALL] WARRANTS EXPIRING ---------------, ---- 2 WARRANT AGREEMENT THIS AGREEMENT, dated as of _______ __, ____, between ASARCO INCORPORATED, a corporation duly organized and existing under the laws of the State of New Jersey (the "Company"), and [name of Warrant Agent], a [banking association] duly incorporated and existing under the laws of _______________, as Warrant Agent (the "Warrant Agent"), W I T N E S S E T H T H A T : WHEREAS, the Company proposes to sell warrants (the "Warrants" or, individually, a "Warrant") representing the right to receive from the Company the Cash Settlement Value (as defined herein) in U.S. dollars of the right to [purchase/sell] ___________ at a price of U.S. ($________; and WHEREAS, the Company wishes the Warrant Agent to act on behalf of the Company in connection with the issuance, transfer and exercise of the Warrants, and wishes to set forth herein, among other things, the provisions of the Warrants and the terms and conditions on which they may be issued, transferred, exercised and cancelled. NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows: ARTICLE I. ISSUANCE, FORM, EXECUTION, DELIVERY AND REGISTRATION OF WARRANTS SECTION 1.01 Issuance of Warrants; Book Entry Procedures; Successor Depository. (a) The Warrants shall be represented by a single certificate (the "Global Warrant Certificate"). Each Warrant shall represent the right, subject to the provisions contained herein and in the Global Warrant Certificate, to receive the Cash Settlement Value (as defined in paragraph (f) of Section 2.02) of such Warrant. In no event shall Holders (as defined in Section 2.01) be entitled to receive any interest on any Cash Settlement Value (unless the Company shall default in the 3 Page 2 payment of such Cash Settlement Value). Holders will not be entitled to receive definitive Warrants evidencing the Warrants; provided, however, that if the Depository (as defined in Section 1. is at any time unwilling or unable to continue as Depository for the Warrants and a successor Depository is not appointed by the Company within 90 days, the Company will issue Warrants in definitive form in exchange for the Global Warrant Certificate. In addition, the Company may at any time determine not to have the Warrants represented by a Global Warrant Certificate and, in such event, will issue Warrants in definitive form in exchange for the Global Warrant Certificate. In either instance, and in accordance with the provisions of this Agreement, each Holder will be entitled to have a number of Warrants equivalent to such Holder's beneficial interest in the Global Warrant Certificate registered in its name and will be entitled to physical delivery of such Warrants in definitive form by the Depository Participant (as defined in Section 1.01(c)) through which such Holder's beneficial interest is reflected. The provisions of Section 1.05 shall apply only if and when Warrants in definitive form ("Warrant Certificates") are issued hereunder. Unless the context shall otherwise require, all references in this Agreement to the Global Warrant Certificate shall include the Warrant Certificates in the event that Warrant Certificates are issued. (b) The Global Warrant Certificate shall be deposited with the Depository or its agent (the term "Depository," as used herein, initially refers to The Depository Trust Company and includes any successor depository selected by the Company as provided in Section 1.01(d)) for credit to the accounts of the Depository Participants as shown on the records of the Depository from time to time. (c) The Global Warrant Certificate will initially be registered in the name of a nominee of the Depository selected by the Company for the Warrants. The Warrant holdings of Depository Participants will be recorded on the books of the Depository. The holdings of customers of Depository Participants will be reflected on the books and records of such Depository Participants and will not be known to the Warrant Agent, the Company or to the Depository. "Depository Participants" include securities brokers and dealers, banks and trust companies, clearing organizations and certain other organizations which are participants in the DTC system. Access to the Depository's system is also available to others such as 4 Page 3 banks, securities dealers and trust companies that clear or maintain a custodial relationship with a Depository Participant, either directly or indirectly. The Global Warrant Certificate will be held by the Depository or its agent. (d) The Company may from time to time select a new entity to act as Depository and, if such selection is made, the Company shall promptly give the Warrant Agent notice to such effect identifying the new Depository and the Global Warrant Certificate shall be delivered to the Warrant Agent and shall be transferred to the new Depository as provided in Section 1.04 as promptly as possible. Appropriate changes may be made in the Global Warrant Certificate, the notice of exercise and the related notices delivered in connection with an exercise of Warrants to reflect the selection of the new Depository. SECTION 1.02 Form, Execution and Delivery of Global Warrant Certificate. The Global Warrant Certificate may have imprinted or otherwise reproduced thereon such letters, numbers or other marks of identification or designation and such legends or endorsements as the officers of the Company executing the same may approve (execution thereof to be conclusive evidence of such approval) and are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Warrants may be listed or of the Depository, or to conform to usage. The Global Warrant Certificate shall be signed on behalf of the Company by its President, Chairman of the Board, officer serving as Chief Financial Officer, Treasurer, any Executive Vice President or any Vice President, manually or by facsimile signature, and a facsimile of its corporate seal shall be impressed, imprinted or engraved thereon, which shall be attested by its Secretary or any Assistant Secretary, either manually or by facsimile signature. Typographical and other minor errors or defects in any such reproduction of the seal or any such signature shall not affect the validity or enforceability of the Global Warrant Certificate that has been duly countersigned and delivered by the Warrant Agent. In case any officer of the Company who shall have signed the Global Warrant Certificate either manually or by facsimile signature shall cease to be such officer before the Global Warrant Certificate so signed shall have been countersigned and delivered by the Warrant Agent to the 5 Page 4 Company or delivered by the Company, such Global Warrant Certificate nevertheless may be countersigned and delivered as though the person who signed such Global Warrant Certificate had not ceased to be such officer of the Company ; and the Global Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Global Warrant Certificate, shall be the proper officers of the Company, although at the date of the execution of this Agreement any such person was not such officer. SECTION 1.03 Global Warrant Certificate. One or more Global Warrant Certificates relating to no more than _______ Warrants originally issued may be executed by the Company and delivered to the Warrant Agent on or after the date of execution of this Agreement, provided that only one Global Warrant Certificate shall be outstanding at any one time. The Warrant Agent is authorized, upon receipt of a Global Warrant Certificate from the Company, duly executed on behalf of the Company, to countersign such Global Warrant Certificate. The Global Warrant Certificate shall be manually countersigned and dated the date of countersignature by the Warrant Agent and shall not be valid for any purpose unless so countersigned. The Warrant Agent shall countersign and deliver the Global Warrant Certificate to or upon the order of the Company. The Global Warrant Certificate may be exchanged for a new Global Warrant Certificate to reflect the issuance by the Company of additional Warrants; provided, however, that in no event shall the number of Warrants represented by the Global Warrant Certificate exceed _______________ originally issued. To effect such an exchange the Company shall deliver to the Warrant Agent a new Global Warrant Certificate duly executed on behalf of the Company as provided in Section 1.02. The Warrant Agent shall countersign the new Global Warrant Certificate as provided in this Section 1.03 and, upon and written order of the Company, shall deliver the new Global Warrant Certificate to the Depository in exchange for, and upon receipt of, the Global Warrant Certificate then held by the Depository. The Warrant Agent shall cancel the Global Warrant Certificate delivered to it by the Depository and return the cancelled Global Warrant Certificate to the Company. SECTION 1.04 Registration of Transfers and Exchanges. Except as otherwise provided herein or in the Global Warrant Certificate, the Warrant Agent shall from 6 Page 5 time to time register the transfer of the Global Warrant Certificate in the records of the Warrant Agent only to the Depository, to a nominee of the Depository, to a successor Depository or to a nominee of a successor Depository, upon surrender of such Global Warrant Certificate, duly endorsed and accompanied by a written instrument or instruments of transfer in form satisfactory to the Warrant Agent and the Company, duly signed by the registered Holder thereof or by the duly appointed legal representative thereof or by a duly authorized attorney, such signature to be guaranteed by a bank or trust company, by a broker or dealer which is a member of the National Association of Securities Dealers, Inc. or by a member of a national securities exchange. Upon any such registration of transfer, the Company shall execute and the Warrant Agent shall countersign and deliver in the name of the designated transferee a new Global Warrant Certificate of like tenor and evidencing a like number of unexercised Warrants as evidenced by the Global Warrant Certificate at the time of such registration of transfer. The Global Warrant Certificate may be transferred as provided above at the option of the Holder thereof when surrendered to the Warrant Agent at its office or agency maintained for the purpose of transferring and exercising the Warrants, which shall be south of Chambers Street in the Borough of Manhattan, The City of New York (the "Warrant Agent Office"), and which is, on the date of this Agreement, _______________, New York, New York _______________, Attention: [Corporate Trust Department], or at the office of any successor Warrant Agent as provided in Section 5.03, for another Global Warrant Certificate of like tenor and representing a like number of unexercised Warrants. SECTION 1.05 Warrant Certificates. Any Warrant Certificates issued in accordance with Section 1.01(a) shall be in registered form substantially in the form set forth in Exhibit A hereto, with such appropriate insertions, omissions, substitutions and other variations as are necessary or desirable for individual Warrant Certificates, and may represent any integral multiple of Warrants. The Warrant Certificates may have imprinted or otherwise reproduced thereon such letters, numbers or other marks of identification or designation and such legends or endorsements as the officers of the Company executing the same may approve (execution thereof to be conclusive evidence of such approval) and are not inconsistent with 7 Page 6 the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Warrants may be listed or of the Depository, or to conform to usage. Warrant Certificates shall be signed on behalf of the Company upon the same conditions, in substantially the same manner and with the same effect as the Global Warrant Certificate. Each Warrant Certificate, when so signed on behalf of the Company, shall be delivered to the Warrant Agent, which shall manually countersign and deliver the same to or upon the written order of the Company. Each Warrant Certificate shall be dated the date of its countersignature. No Warrant shall be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been countersigned by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed by the Company shall be conclusive evidence that the Warrant Certificate so countersigned has been duly issued hereunder. Warrant Certificates delivered in exchange for the Global Warrant Certificate shall be registered in such names and addresses (including tax identification numbers) and in such denominations as shall be requested in writing by the Depository or its nominee in whose name the Global Warrant Certificate is registered, upon written certification to the Company and the Warrant Agent in form satisfactory to each of them of a beneficial ownership interest in the Global Warrant Certificate. The Company shall cause to be kept at an office of the Warrant Agent in the [City of New York] a register (the register maintained in such office and in any other office or agency maintained by or on behalf of the Company for such purpose being herein sometimes collectively referred to as the "Warrant Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Warrant Certificates and of transfers of Warrant Certificates. The Warrant Agent is hereby appointed "Warrant Registrar" for the purpose of registering Warrant Certificates and transfers of Warrant Certificates as herein provided. 8 Page 7 For purposes of this Section 1.05, a "Warrantholder" of a Warrant Certificate at any particular time is the person in whose name such Warrant Certificate is registered in the Warrant Register at such time. Upon surrender for registration of transfer of any Warrant Certificate at an office or agency of the Company maintained for such purpose, the Company shall execute, and the Warrant Agent shall countersign and deliver, in the name of the designated transferee or transferees, one or more new Warrant Certificates of any authorized denominations and representing Warrants of a like aggregate number. At the option of the Warrantholder, Warrant Certificates may be exchanged for other Warrant Certificates of any authorized denominations and representing Warrants of a like aggregate number, upon surrender of the Warrant Certificates to be exchanged at such office or agency. Whenever any Warrant Certificates are so surrendered for exchange, the Company shall execute, and the Warrant Agent shall countersign and deliver, the Warrant Certificates which the Warrantholder making the exchange is entitled to receive. All Warrant Certificates issued upon any registration of transfer or exchange of Warrant Certificates shall be the valid obligations of the Company, evidencing the same obligations of the Company, and entitled to the same benefits under this Warrant Agreement, as the Warrant Certificates surrendered upon such registration of transfer or exchange. Every Warrant Certificate presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Warrant Agent) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Warrant Registrar duly executed, by the Warrantholder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Warrant Certificates. 9 Page 8 If any mutilated Warrant Certificate is surrendered to the Warrant Agent, the Company shall execute and the Warrant Agent shall countersign and deliver in exchange therefor a new Warrant Certificate of like tenor representing Warrants of a like number and bearing a number not contemporaneously outstanding. If there shall be delivered by a Warrantholder to the Company and the Warrant Agent (i) evidence to their satisfaction of the destruction, loss or theft of any Warrant Certificate, (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless and (iii) funds sufficient to cover any cost or expense to the Company (including any fees charged by the Warrant Agent) relating to the issuance of a new Warrant Certificate, then, in the absence of notice to the Company or the Warrant Agent that such Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Warrant Agent shall countersign and deliver, in lieu of any such destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of like tenor representing Warrants of a like number and bearing a number not contemporaneously outstanding. In case the Warrants evidenced by any such mutilated, destroyed, lost or stolen Warrant Certificate have been exercised, or have been or are about to be deemed to be exercised, the Company in its discretion may, instead of issuing a new Warrant Certificate, treat the same as if it had received written irrevocable notice of exercise in good form in respect thereof, as provided herein. Every new Warrant Certificate issued pursuant to this Section 1.05 in lieu of any destroyed, lost or stolen Warrant Certificate shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Warrant Agreement equally and proportionately with any and all other Warrant Certificates duly issued hereunder. The provisions of this Section 1.05 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 Warrant Certificates. 10 Page 9 Prior to due presentment of a Warrant Certificate for registration of transfer, the Company, the Warrant Agent and any agent of the Company or the Warrant Agent may treat the person in whose name such Warrant Certificate for all purposes hereunder whatsoever, whether or not such Warrant Certificate be exercised or deemed to be exercised and neither the Company, the Warrant Agent nor any agent of the Company or the Warrant Agent shall be affected by notice to the contrary. All Warrant Certificates surrendered for exercise, registration of transfer or exchange shall, if surrendered to any person other than the Warrant Agent, be delivered to the Warrant Agent and shall be promptly cancelled by it. The Company may at any time deliver to the Warrant Agent for cancellation any Warrant Certificates previously countersigned and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Warrant Certificates so delivered shall be promptly cancelled by the Warrant Agent. No Warrant Certificates shall be countersigned in lieu of or in exchange for any Warrant Certificates cancelled as provided in this Section 1.05, except as expressly permitted by this Warrant Agreement. All cancelled Warrant Certificates held by the Warrant Agent shall be disposed of as directed by the Company. ARTICLE II. DURATION AND EXERCISE OF WARRANTS SECTION 2.01 Duration of Warrants; Minimum Exercise Amounts; Notice of Exercise. Subject to the limitations described herein, each Warrant evidenced by the Global Warrant Certificate may be irrevocably exercised in whole but not in part on any New York Business Day from its date of issuance until 3:00 p.m., Now York City time, five New York Business Days prior to ____________, ___ (the "Expiration Date") or until earlier an exercise provided in Section 2.03. Except in the case of automatic exercise, each Warrant may be exercised by written notice to the Warrant Agent from a Depository Participant acting on behalf of the beneficial owner of such Warrant (each a "Holder"); provided, however, that notices of exercise are subject to rejection by the Warrant Agent as provided herein. Not fewer than ________ Warrants may be exercised by or on behalf of any one Holder at any one time, except that no such minimum exercise amount shall apply in the 11 Page 10 case of automatic exercise on the Expiration Date or earlier automatic exercise as provided in Section 2.03. Irrevocable notice of exercise to the Warrant Agent shall be in the form set forth in Exhibit B hereto and shall be sent to the Warrant Agent in writing (which shall include facsimile transmissions) at its address set forth in such form of notice or at such other address as the Warrant Agent may specify from time to time. As used herein, "New York Business Day" means any day other than a Saturday or a Sunday or a day on which commercial banks in the City of New York are required or authorized to be closed. Except as provided in Section 2.02(b), the Warrant Agent shall be entitled to rely conclusively on any notice of exercise received by it with no duty of inquiry by the Warrant Agent. SECTION 2.02 Exercise and Delivery of Warrants. (a) Except in the case of automatic exercise on the Expiration Date or earlier automatic exercise as provided in Section 2.03 of this Agreement and subject to Section 2.02(b)(i) of this Agreement, the exercise date (the "Exercise Date") for a Warrant shall be the New York Business Day next succeeding the date on which the Warrant Agent has received written irrevocable notice of exercise in good form at or prior to 3:00 p.m., New York City time; and if the Warrant Agent shall receive such notice of exercise after 3:00 p.m., New York City time, on such date, such notice shall be deemed to have been received at or prior to 3:00 p.m., New York City time, on the next succeeding New York Business Day, and in such event the Exercise Date shall be the second New York Business Day succeeding the date on which the Warrant Agent actually received such notice of exercise. Any notice of exercise received after 3:00 p.m., New York City time, on the fifth New York Business Day preceding the Expiration Date or, if earlier, any Delisting Date (as defined in Section 2.03(a)) shall be void and of no effect and shall be deemed not to have been delivered. (b) Following receipt of a written irrevocable notice of exercise in good form, the Warrant Agent shall (i) promptly verify that the entity that executed such notice is listed as a Depository Participant in the most recent published edition of the Depository's Eligible Corporate Securities Book (or comparable publication of a successor Depository) and, if such entity is not listed therein, the Warrant Agent shall make reasonable efforts to obtain telephonic verification from the Depository's Planning Department (telephone no. 709-1000) (or comparable 12 Page 11 department of a successor Depository) that such entity is a Depository Participant, and if the Warrant Agent is unable through the above described procedures to verify that such entity is a Depository Participant, the Warrant Agent shall reject the notice of exercise; (ii) notify the Company by 5:00 p.m., New York City time, on the New York Business Day such notice of exercise is received (or deemed to have been received) of the number of Warrants in respect of which exercise notices, not rejected pursuant to clause (i) above, were received after 3:00 p.m., New York City time, the preceding New York Business Day and at or prior to 3:00 p.m., New York City time, on such date; (iii) obtain the Spot Rate (as defined in Section 2.02(f)) and determine the Cash Settlement Value of the exercised Warrants in the manner described in Section 2.02(f); (iv) advise the Company by 5:00 p.m., New York City time, on the Exercise Date of the amount payable in respect of the exercise of such Warrants, and of the Spot Rate and Cash Settlement Value with respect to such Warrants, and send notice of confirmation of exercise in the form set forth in Exhibit 3 hereto to such Depository Participant; and (v) promptly deliver a copy of such notice of exercise to the Company and advise the Company of such other matters relating to the exercised Warrants as the Company shall reasonably request. Any notice to be given to the Company by the Warrant Agent pursuant to this Section 2.02 or Section 2.03 shall be by telephone and shall be promptly confirmed in writing. Any notice to be given to the Spot Rate Reference Bank pursuant to this Section 2.02 or Section 2.03 shall be by facsimile transmission to the address of the Spot Rate Reference Bank set forth in Section 6.03. (c) Provided that the Company has made adequate funds available to the Warrant Agent in a timely manner, which shall, in no event, be later that 3:00 p.m., New York City time on the second New York Business Day (the "Settlement Date") following an Exercise Date of the Warrants, the Warrant Agent will be responsible for making its payment available to the Depository in the form of a treasurer's check or official bank check, after 3:00 p.m., New York City time, but prior to the close of business, on such Settlement Date, such payment to be in the amount of the aggregate Cash Settlement Value in respect of such exercised Warrants for which delivery has been accepted by the Warrant Agent. (d) The Warrant Agent shall cause its records, which may be kept electronically, to be marked to reduce the number of Warrants evidenced by the Global Warrant 13 Page 12 Certificate, by the number of Warrants delivered to the Warrant Agent's Depository Participant Account (entitled _____________), or such other account of the Warrant Agent at the Depository as the Warrant Agent shall designate in writing to the Company (the "Warrant Account"), promptly after such delivery. (e) If any Depository Participant fails to transfer Warrants with respect to which it delivered a notice of exercise (a "Failed Delivery") by 11:30 a.m., New York City time, on the Settlement Date therefor, the Warrant Agent shall notify the Company (and, if requested by the Company in writing, a designated agent of the Company) of such Failed Delivery and the number of Warrants to which it relates by _____ p.m., New York City time, on such Settlement Date by telephone, promptly confirmed in writing by transmitting to the Company by telecopy or other similar rapid communication system) a copy of the notice of exercise to which such Failed Delivery relates. At such times as the Warrants are evidenced by a Global Warrant Certificate, a Failed Delivery shall be deemed to occur as a result of a failure by a Depository Participant to take any action required to effectuate a transfer of the Warrants on the records of the Depository. (f) Except as provided in Section 2.03, "Cash Settlement Value" of an exercised Warrant is an amount stated in U.S. dollars which is the greater of (i) zero and (ii) the amount computed by subtracting [from 50]1/ [50 from]2/ an amount equal to 50 times a fraction, the numerator of which is the spot rate on the Exercise Date and the denominator of which is _____________ (the "Strike Price"). The "Spot Rate" on such Exercise Date shall mean the offered spot rate of ____________ U.S. dollars for _________________ as quoted by ____________ (the "Spot Rate Reference Bank") at 10:00 a.m., New York City time, on such date or, if such bank is not quoting such rate at such time, the rate quoted by such other leading bank in the foreign exchange markets as may be selected by the Company in good faith and notified to the Warrant Agent. The Spot Rate shall be calculated to _____________ decimal places. References in this Agreement to "U.S. dollars," "U.S. $" or "$" are to the currency of the United States of America. - --------------------- 1/ In the case of Put Warrants. 2/ In the case of Call Warrants. 14 Page 13 References to _______________ or _______________ are to the currency of _______________. SECTION 2.03 Automatic Exercise of the Warrants. (a) All Warrants with respect to which no accepted notice of exercise in good form has been received by the Warrant Agent by 3:00 p.m., New York City time, on the fifth New York Business Day preceding the earliest to occur of (i) the Expiration Date, (ii) the close of business on the New York Business Day on which the Warrants are delisted from the ____________ Stock Exchange, and (iii) the close of business on the New York Business Day that the Warrants are permanently suspended from trading on the ___________ Stock Exchange (the effective date of any such delisting or permanent suspension, the "Delisting Date") will be automatically exercised, without any required delivery of notice of exercise from any relevant Depository Participant to the Warrant Agent. Such Expiration Date or Delisting Date, as the case may be, shall be the Exercise Date for such Warrants and the Spot Rate and Cash Settlement Value of such Warrants shall be determined as of the New York Business Day following such Exercise Date. The Company will advise the Warrant Agent of the date of any expected delisting or permanent suspension of trading of the Warrants as soon as is practicable and will immediately inform the Warrant Agent after the Company has received notice that such delisting or suspension has occurred, but in no event will notice of such delisting or suspension be given to the Warrant Agent later than 5:00 p.m., New York City time, on the New York Business Day preceding the date that such delisting or suspension occurs. (b) By 5:00 p.m., New York City time, on the fifth New York Business Day preceding the Expiration Date or the Delisting Date, as the case may be, the Warrant Agent shall advise the Company of the number of Unexercised Warrants outstanding after 3:00 p.m., New York City time, on such day. The Warrant Agent shall, on the New York Business Day following the Expiration Date or the Delisting Date, as the case may be, (i) obtain the Spot Rate and determine the Cash Settlement Value (in the manner provided in paragraph (f) of Section 2.02, except that the Spot Rate shall be the Spot Rate on the New York Business Day next succeeding the Expiration Date or the Delisting Date, as the case may be) of the Unexercised Warrants, (ii) advise the Company of the Spot Rate and the Cash Settlement Value of the Unexercised Warrants evidenced by the Global Warrant Certificate, and (iii) advise the Company of such other 15 Page 14 matters relating to the Unexercised Warrants as the Company shall reasonably request. Provided that the Company has made adequate funds available to the Warrant Agent in a timely manner which shall, in no event, be later than 3:00 p.m., New York time, on the third New York Business Day following the Expiration Date or the Delisting Date, as the case may be, the Warrant Agent will make its treasurer's check or an official bank check available to the Depository against receipt by the Warrant Agent from the Depository of the Global Warrant Certificate on the third New York Business Day following the Expiration Date, such check to be in the amount of the aggregate Cash Settlement Value in respect of the number of Unexercised Warrants evidenced by the Global Warrant Certificate at the close of business on the Expiration Date. The Warrant Agent shall promptly cancel the Global Warrant Certificate following its receipt thereof from the Depository. (c) The Company will notify the Holders, or will cause the Holders to be notified, as promptly as is practicable of any expected delisting or suspension of trading of the Warrants. SECTION 2.04 Covenant of the Company. The Company covenants, for the benefit of the Holders, that it will not seek the delisting of the Warrants, or suspension of their trading on, the _________ Stock Exchange. SECTION 2.05 Return of Global Warrant Certificate. At such time as all of the Warrants have been exercised, deemed automatically exercised or otherwise cancelled, the Warrant Agent shall return the cancelled Global Warrant Certificate to the Company. SECTION 2.06 Return of Money Held Unclaimed for Two Years. Any money deposited with or paid to the Warrant Agent for the payment of the Cash Settlement Value of any Warrants and not applied but remaining unclaimed for two years after the date upon which such Cash Settlement Value shall have become due and payable, shall be repaid by the Warrant Agent to the Company and the Holder of such warrants shall thereafter look only to the Company for any payment which such Holder may be entitled to collect and all liability of the Warrant Agent with respect to such money shall thereupon cease; provided, however, that the Warrant Agent before making such repayment, may at the expense of the Company notify the Holders concerned that said money has not been so applied and remains unclaimed and that after a date named therein any unclaimed balance 16 Page 15 of said money then remaining will be returned to the Company. SECTION 2.07 Designation of Agent for Receipt of Notice. The Company may from time to time Designate in writing to the Warrant Agent a designee for receipt of all notices required to be given by the Warrant Agent pursuant to this Article II and all such notices thereafter shall be given in the manner herein provided by the Warrant Agent to such designee. ARTICLE III. OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS SECTION 3.01 Holder of Warrant May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any Holder, without the consent of the Warrant Agent, may, in and for his own behalf, enforce, and may institute and maintain any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, his right to exercise, and to receive payment for, his Warrants as provided in the Global Warrant Certificate and in this Agreement. SECTION 3.02 Merger, Consolidation, Sale, Transfer or Conveyance. If at any time there shall be a merger, consolidation, sale, transfer, conveyance or other disposition of substantially all of the assets of the Company, then in any such event the successor or assuming corporation shall succeed to and be substituted for the Company, with the same effect as if it had been named herein and in the Warrants as the Company; the Company shall thereupon be relieved of any further obligation hereunder or under the Warrants, and, in the event of any such sale, transfer, conveyance (other than by way of lease) or other disposition, the Company as the predecessor corporation may thereupon or at any time thereafter be dissolved, wound up or liquidated. Such successor or assuming corporation thereupon may cause to be signed, and may issue, either in its own name or in the name of the Company, a new Global Warrant Certificate representing the Warrants not theretofore exercised, in exchange and substitution for the Global Warrant Certificate theretofore issued. Such Global Warrant Certificate shall in all respects have the same legal rank and benefit under this Agreement as the Global Warrant Certificate theretofore issued in accordance with the terms of this Agreement as 17 Page 16 though such new Global Warrant Certificate had been issued at the date of the execution hereof. In any case of any such consolidation, merger, sale, transfer, conveyance or other disposition of substantially all of the assets of the Company, such changes in phraseology and form (but not in substance) may be made in the new Global Warrant Certificate as may be appropriate. The Warrant Agent may receive a written opinion of legal counsel as conclusive evidence that any such consolidation, merger, sale, transfer, conveyance or other disposition of substantially all of the assets of the Company complies with the provisions of this Section 3.02 and that the assumption of this Agreement by the successor or assuming corporation is effective. ARTICLE IV. CANCELLATION OF WARRANTS SECTION 4.01 Cancellation of Warrants. In the event the Company shall purchase or otherwise acquire Warrants, such Warrants may, at the option of the Company and upon notification to the Warrant Agent, be surrendered free through a Depository Participant for credit to the Warrant Account and if so credited the Warrant Agent shall promptly note the cancellation of such Warrants by notation on the records of the Warrant Agent. SECTION 4.02 Treatment of Holders. The Company, the Warrant Agent and any agent of the Company or the Warrant Agent may deem and treat the person in whose name the Global Warrant Certificate shall be registered in the records of the Warrant Agent as the absolute owner of such Global Warrant Certificate (notwithstanding any notation of ownership or other writing thereon) for any purpose and as the person entitled to exercise the rights represented by the Warrants evidenced hereby, and neither the Company nor the Warrant Agent, nor any agent of the Company or the Warrant Agent shall be affected by any notice to the contrary, except that the Warrant Agent and the Company shall be entitled to rely on and act pursuant to instructions of Depository Participants as contemplated by Article II of this Agreement. This Section 4.02 shall be without prejudice to the rights of Holders as described elsewhere herein. 18 Page 17 ARTICLE V. CONCERNING THE WARRANT AGENT SECTION 5.01 Warrant Agent. The Company hereby appoints _______________ as Warrant Agent of the Company in respect of the Warrants and the Global Warrant Certificate upon the terms and subject to the conditions set forth herein and in the Global Warrant Certificate; and _______________ hereby accepts such appointment. The Warrant Agent shall have the powers and authority granted to and conferred upon it in the Global Warrant Certificate and hereby and such further powers and authority acceptable to it to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the terms and provisions with respect to such powers and authority contained in the Global Warrant Certificate are subject to and governed by the terms and provisions hereof. SECTION 5.02 Conditions of Warrant Agent's Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof and of the Global Warrant Certificate, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders from time to time of the Warrants shall be subject; (a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses (including counsel fees and expenses) incurred by the Warrant Agent without negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without negligence, bad faith or breach of this Agreement on the part of the Warrant Agent, arising out of or in connection with its acting as such Warrant Agent hereunder or with respect to the Global Warrant Certificate, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. (b) In acting under this Warrant Agreement and in connection with the Global Warrant Certificate, the Warrant Agent is acting solely as agent of the Company and 19 Page 18 does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the Warrants. (c) The Warrant Agent may consult with counsel satisfactory to it, and the opinion of such 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 accordance with the opinion of such counsel. (d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted or thing suffered by it in reliance upon any Global Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. (e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest in, any Warrants or other obligations of the Company, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders of Warrants or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. (f) The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Global Warrant Certificate nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Warrant Agent shall not be responsible for advancing funds on behalf of the Company. (g) The Warrant Agent shall not be under any responsibility with respect to the validity or sufficiency of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Global Warrant Certificate (except its countersignature thereof). 20 Page 19 (h) The recitals contained herein and in the Global Warrant Certificate (except as to the Warrant Agent's countersignature thereon) shall be taken as the statements of the Company, and the Warrant Agent assumes no responsibility for the correctness of the same. (i) The Warrant Agent shall be obligated to perform only such duties as are herein and in the Global Warrant Certificate specifically set forth and no implied duties or obligations shall be read into this Agreement or the Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder likely to involve it in any expense or liability, the payment of which is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of the Global Warrant Certificate countersigned by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of any proceeds. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Global Warrant Certificate or in the case of the receipt of any written demand from a Holder of a Warrant with respect to such default, except as provided in Section 6.02 hereof, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company. (j) Unless herein or in the Global Warrant Certificate otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by its President, Chairman of the Board, officer serving as Chief Financial Officer, Treasurer, any Executive Vice President or any Vice President. SECTION 5.03 Resignation and Appointment of Successor. (a) The Company agrees, for the benefit of the Holders from time to time of the Warrants, that there shall at all times be a Warrant Agent hereunder until all the Warrants are no longer exercisable. (b) The Warrant Agent may at any time resign as such agent by giving written notice to the Company of such intention on its part, specifying the date on which its 21 Page 20 desired resignation shall become effective, subject to the appointment of a successor Warrant Agent, and acceptance of such appointment by such successor Warrant Agent, as hereinafter provided. The Warrant Agent hereunder may be removed at any time by the filing with it of an instrument in writing signed by or on behalf of the Company and ratifying such removal and the date when it shall become effective. Such resignation or removal shall take effect upon the appointment by the Company, as hereinafter provided, of a successor Warrant Agent (which shall be a banking institution organized under the laws of the United States of America, or one of the states thereof and having an office or an agent's office south of Chambers Street in the Borough of Manhattan, the City of New York) and the acceptance of such appointment by such successor Warrant Agent. In the event a successor Warrant Agent has not been appointed and accepted its duties within 90 days of the Warrant Agent's notice of resignation, the Warrant Agent may apply to any court of competent jurisdiction for the designation of a successor Warrant Agent. The obligation of the Company under Section 5.02(a) shall continue to the extent set forth therein notwithstanding the resignation or removal of the Warrant Agent and shall survive the termination of this Agreement. (c) In case at any time the Warrant Agent shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or make an assignment for the benefit of its creditors or consent to the appointment of a receiver or custodian of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they mature, or if a receiver or custodian of it or all or any substantial part of its property shall be appointed, or if any public officer shall have taken charge or control of the Warrant Agent or of its property or affairs, for the purpose of rehabilitation, conservation or liquidation, a successor Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an instrument in writing, filed with the successor Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by the latter of such appointment, the Warrant Agent so superseded shall cease to be Warrant Agent hereunder. (d) Any successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall 22 Page 21 become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all monies, securities and other property on deposit with or held by such predecessor, as Warrant Agent hereunder. (e) Any corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation to which the Warrant Agent shall sell or otherwise transfer all or substantially all of the corporate trust business of the Warrant Agent, provided that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto. ARTICLE VI. MISCELLANEOUS SECTION 6.01 Amendment. (a) This Agreement and the Global Warrant Certificate may be amended by the Company and the Warrant Agent, without the consent of the Holder of the Global Warrant Certificate or the Holders, for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective or inconsistent provision contained herein or therein, for the purpose of appointing a successor Depository in accordance with paragraph (d) of Section 1.01, for the purpose of issuing warrants in definitive form in accordance with paragraph (a) of Section 1.01, or in any other manner which the Company may deem to be necessary or desirable and which will not materially and adversely affect the interests of the Holders of the Warrants. Notwithstanding anything in this Section 6.01 to the contrary, this Agreement may not be amended to provide for the countersigning by the Warrant Agent of one or more Global Warrant Certificates evidencing in excess of _________ Warrants originally issued. 23 Page 22 (b) The Company and the Warrant Agent may modify or amend this Agreement and the Global Warrant Certificate, with the Consent of the Holders holding not fewer than a majority in number of the then outstanding Unexercised Warrants affected by such modification or amendment, for any purpose; provided, however, that no such modification or amendment that increases the Strike Price in the case of a Call Warrant, or decreases the Strike Price in the case of a Put Warrant, shortens the period of time during which the Warrants may be exercised, or otherwise materially and adversely affects the exercise rights of the Holders or reduces the percentage of the number of outstanding Warrants the consent of the Holders of which is required for modification or amendment of this Agreement or the Global Warrant Certificate may be made without the consent of each Holder affected thereby. SECTION 6.02 Notices and Demands to the Company and Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Company by any Holder pursuant to the provisions of the Global Warrant Certificate, the Warrant Agent shall promptly forward such notice or demand to the Company. SECTION 6.03 Addresses for Notices. Any communications from the Company to the Warrant Agent with respect to this Agreement shall be addressed to [name of Warrant Agent], [address], New York (facsimile: __________) (telephone: _____________ ), Attention: Corporate Trust Department; any communications from the Warrant Agent to the Company with respect to this Agreement shall be addressed to ASARCO Incorporated, _____________________ (facsimile:________________________) (telephone: ___________), Attention: Treasurer (first copy) and Secretary (second copy); and any communications from the Warrant Agent to the Spot Rate Reference Bank with respect to this Agreement shall be addressed to _______________ , (address), Attention: Corporate Foreign Exchange (facsimile: ___________ ) (telephone: ________________), Attention:_____________ (or such of an address as may be specified in writing by the Warrant Agent, the Company or the Spot Rate Reference Bank, respectively). SECTION 6.04 Notices to Holders. The Company or the Warrant Agent may cause to have notice given to the Holders of Warrants by providing the Depository with a form of notice to be distributed by the Depository to Depository 24 Page 23 Participants in accordance with the custom and practices of the Depository. SECTION 6.05 Applicable Law. The validity, interpretation and performance of this Agreement and each Warrant issued hereunder and of the respective terms and provisions thereof shall be governed by the laws of the State of New York. SECTION 6.06 Obtaining of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and keep effective any and all permits, consents and approvals of governmental agencies and authorities and the Stock Exchange and securities acts filings under United States Federal and State laws, which may be or become requisite in connection with the issuance, sale, trading, transfer or delivery of the Warrants, the Global Warrant Certificate and the exercise of the Warrants. SECTION 6.07 Persons Having Rights under Warrant Agreement. Nothing in this Agreement express or implied and nothing that may be inferred from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the Company, the Warrant Agent, the registered Holder of the Global Warrant Certificate and the Holders any right, remedy or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise or agreement hereof; and all covenants, conditions, stipulations, promises and agreements in this Agreement contained shall be for the sole and exclusive benefit of the Company and the Warrant Agent and their successors and of the registered Holder of the Global Warrant Certificate and the Holders. SECTION 6.08 Headings. The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. SECTION 6.09 Counterparts. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original; but such counterparts shall together constitute but one and the same instrument. SECTION 6.10 Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office of the Warrant Agent, 25 Page 24 for inspection by the registered holder of the Global Warrant Certificate, Depository Participants and Holders. IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written. ASARCO INCORPORATED By ------------------------ [Title] [name of Warrant Agent] By ------------------------ [Title] 26 EXHIBIT A EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN NO. CUSIP NO. GLOBAL WARRANT CERTIFICATE representing up to __________ Currency [Put/Call] Warrants Expiring ____________, ___ ASARCO INCORPORATED This certifies that [__________] or registered assigns is the registered Holder of _____________ Currency [Call/Put)] warrants (the "Warrants") or successor amount as is indicated in the records of [name of Warrant Agent], as Warrant Agent. Each Warrant entitles the beneficial owner thereof (a "Holder"), subject to the provisions contained herein and in the Warrant Agreement referred to below, to receive from ASARCO Incorporated (the "Company") the cash settlement value (the "Cash Settlement Value") of the right to [sell/purchase]: __________ at a price of U.S. ($___, as further described below, Holders will not be entitled to any interest on any Cash Settlement Value to which they are otherwise entitled (unless the Company shall default in the payment of such Cash Settlement Value). The Warrants may be exercised at or prior to 3:00 p.m., New York City time, on any New York Business Day from their date of issuance until 3:00 p.m., New York City time, on the fifth New York Business Day preceding (i) their expiration on ___________, ____ (the "Expiration Date") or (ii) the date of earlier automatic exercise as further described below and as provided in the Warrant Agreement. Except in the case of automatic exercise, not fewer than [2,000] Warrants may be exercised by or on behalf of any one Holder on any one day. Reference herein to "U.S. dollars" or "U.S.$" are to the currency of the United States of America. References to _________ or _________ are to the currency of _______. The term "New York Business Day," as used herein, means any day other than a Saturday or Sunday or a day on which 27 Page 2 commercial banks in New York City are required or authorized to be closed. This Global Warrant Certificate is issued under and in accordance with the Warrant Agreement, dated as of ____ (the "Warrant Agreement"), between the Company and the Warrant Agent, and is subject to the terms and provisions contained in the Warrant Agreement, to all of which terms and provisions all beneficial owners of the Warrants evidenced by this Global Warrant Certificate and the Holder of this Global Warrant Certificate consent by acceptance hereof by the Depository (as defined below). Copies of the Warrant Agreement are on file at the principal corporate trust office of the Warrant Agent in New York City. Except as provided in the Warrant Agreement, Holders will not be entitled to receive definitive warrants evidencing their Warrants. Warrant holdings will be held through a depository selected by the Company which initially is The Depository Trust Company (the "Depository," which term, as used herein, includes any successor depository selected by the Company) as further provided in the Warrant Agreement. Capitalized terms including herein but not defined herein have the meanings assigned thereto in the Warrant Agreement. The Cash Settlement Value of an exercised Warrant will be an amount stated in U.S. dollars which is the greater of (i) zero and (ii) the amount computed by subtracting [from 501]1/ [50 from]2/ an amount equal to 50 times a fraction, the numerator of which is the Spot Rate on the Exercise Date and the denominator of which is ______ (except in the case of automatic exercises as described below). The "Spot Rate" on any date will be the offered spot rate of U.S. dollars for _______ as quoted by __________ at 10:00 a.m., New York City time, on such date or, if such bank is not quoting such rate at such time, the rate quoted by such other lending bank in the foreign exchange markets as may be selected by the Company in good faith and notified to the Warrant Agent. - -------------------- 1/ In the case of Put Warrants. 2/ In the case of Call Warrants. 28 Page 3 Subject to the provisions hereof and of the Warrant Agreement, each Warrant shall be deemed to be exercised on the next New York Business Day after the New York Business Day on which the notice of exercise in good form is received by the Warrant Agent at or prior to 3:00 p.m., New York City time, on such date (the 'Exercise Date'). If the Warrant Agent receives such notice of exercise after 3:00 p.m., New York City time, on such date, such notice shall be deemed to have been received at or prior to 3:00 p.m., New York City time, on the next New York Business Day, and in such event the Exercise Date shall be the second New York Business Day succeeding the date on which the Warrant Agent actually received such notice. If the notice of exercise is not rejected as provided in the Warrant Agreement, the Warrant Agent will obtain the Spot Rate and determine the Cash Settlement Value of the exercised Warrants in the manner described in the Warrant Agreement. Any notice of exercise received after 3:00 p.m., New York City time, on the fifth New York Business Day preceding the Expiration Date or the date of earlier automatic exercise as further described below and as provided in the Warrant Agreement shall be void and of no effect and shall be deemed not to have been delivered. Provided that the Company has made adequate funds available to the Warrant Agent in a timely manner, the Warrant Agent will be responsible for making its payment available by treasurer's check or official bank check to the Depository on the second New York Business Day following an Exercise Date (the 'Settlement Date'), all as provided in the Warrant Agreement, such payment to be in the amount of the aggregate Cash Settlement Value in respect of such exercised warrants for which delivery has been accepted by the Warrant Agent. If any Depository Participant fails to transfer by 11:30 a.m., New York City time, on the Settlement Date the Warrants with respect to which it delivered a notice of exercise, such Depository Participant will be liable to the Company as provided in the notice of exercise and be subject to all of the provisions set forth therein and in the Warrant Agreement. The Warrant Agent will promptly cause its records to be marked to reduce the number of Unexercised Warrants evidenced by this Global Warrant Certificate by the number of Warrants transferred to the Warrant Agent's Depository Participant Account (No. ____) from time to time. 29 Page 4 All Warrants with respect to which no notice of exercise in good form has been received by the Warrant Agent by 3:00 p.m., New York City time, on the fifth New York Business Day preceding the earliest to occur of (i) the Expiration Date, (ii) the close of business on the New York Business Day on which the Warrants are delisted from the ________ Stock Exchange, and (iii) the close of business on the New York Business Day that the Warrants are permanently suspended from trading on the Stock Exchange will be automatically exercised, without any required delivery of notice of exercise for the Depository Participant to the Warrant Agent, in the case of clause (i), as of the Expiration Date, in the case of clause (ii), as of the date of such delisting, and, in the case of clause (iii), as of the date of such suspension. The Cash Settlement Value of such Warrants will be determined as provided above, except that, in the case of clause (i), the Spot Rate shall be the Spot Rate on the New York Business Day next succeeding the Expiration Date and, in the case of clauses (ii) and (iii), the Spot Rate shall be the Spot Rate on the New York Business Day following the date of such delisting or suspension, as the case may be. The Settlement Date with respect to any such automatically exercised Warrants shall be the third New York Business Day following the Expiration Date or the date of such delisting or permanent suspension. The Company, the Warrant Agent and any agent of the Company or the Warrant Agent may deem and treat the registered owner hereof as the absolute owner of the warrants evidenced hereby (notwithstanding any notation of ownership or other writing hereon) for any purpose and as the person entitled to exercise the rights represented by the Warrants evidenced hereby, and neither the Company nor the Warrant Agent nor any agent of the Company or the Warrant Agent shall be affected by any notice to the contrary, subject to certain provisions of the Warrant Agreement, except that the Company and the Warrant Agent shall be entitled to rely on and act pursuant to instructions of Depository Participants as contemplated herein and in the Warrant Agreement. Subject to the terms of the Warrant Agreement, upon due presentment for registration of transfer of this Global Warrant Certificate at the principal corporate trust offices 30 Page 5 of the Warrant Agent in New York City, the Company shall execute and the Warrant Agent shall countersign and deliver in the name of the designated transferee a new Global Warrant Certificate of like tenor and evidencing a like number of Unexercised Warrants as evidenced by this Global Warrant Certificate at the time of such registration of transfer and shall be issued to the designated transferee in exchange for this Global Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge. This Global Warrant Certificate and the Warrant Agreement are subject to amendment as provided in the Warrant Agreement. This Global Warrant Certificate shall not be valid or obligatory for any purpose until countersigned by the Warrant Agent. 31 Page 6 IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by ASARCO Incorporated. Dated as of -----------, ---- ASARCO INCORPORATED By ---------------------- [SEAL] [Title] Attest ---------------------- [Title] Countersigned on the date above written: [name of Warrant Agent], as Warrant Agent By ---------------------- [Title] 32 Page 7 Form of Transfer of Global Warrant Certificate ___________________________________, as Warrant Agent Corporate Trust Department [address] (Telex: __________) (Facsimile: __________) ______________________, the registered Holder of the Global Warrant Certificate representing all unexercised ASARCO Incorporated Currency Put/Call Warrants Expiring ______________, ____, hereby requests the transfer of such Global Warrant effaced to _______________________. Dated: [NAME OF REGISTERED HOLDER] --------------- By ------------------------- 33 EXHIBIT B Form of Irrevocable Notice of Exercise ____________________________. as Warrant Agent [address] Attention: [Corporate Trust Department] (Telex: ________) (Facsimile: _________) Re: Exercise of ASARCO Incorporated Currency [Put/Call] warrants Expiring _________, ____ ("Warrants") 1. We refer to the Warrant Agreement dated as of _________, ____ (the "Warrant Agreement") between ASARCO Incorporated (the "Company") and [name of Warrant Agent] ( the "Warrant Agent"). On behalf of certain clients, each of whom is exercising no fewer than [2,000] Warrants and whose warrants are held in our name, we hereby irrevocably exercise warrants (the "Exercised Warrants"). We hereby certify that, at the time this notice is delivered to you, we hold in our name on behalf of each such client a settled position of warrants in an amount at least equal to the number of Warrants that we are hereby exercising on behalf of such client. We hereby acknowledge that this Irrevocable Notice of Exercise must be received by you by 3:00 p.m., New York City time, on the date hereof in order for the Exercise Date of the Exercised Warrants to be the next succeeding New York Business Day and that if this Irrevocable Notice of Exercise is received by you after 3:00 p.m., New York City time, the Exercise Date of the Exercised Warrants shall be the second succeeding New York Business Day. 2. We hereby certify that we are a participant of (The Depository Trust Company) (the "Depository") with the present right to use and receive its services. 3. We hereby agree to transfer such warrants by 11:30 a.m., New York City time, on the second New York Business Day following the Exercise Date of the Exercised Warrants (___________, ____) (the "Settlement Date") to the Warrant Agent's Participant Account No. (the "Warrant Account"). We hereby acknowledge that once we have 34 Page 2 delivered this irrevocable Notice of Exercise to you in good form we must transfer the Exercised Warrants by 1:30 a.m., New York City time, on the Settlement Date and, from and after the time this notice is delivered to you, we will not effect any transactions with respect to the Exercised Warrants except for the transfer to the Warrant Account of the Exercised Warrants on the Settlement Date. 4. We understand and agree that if we fail to transfer any of the Exercised Warrants by 11:30 a.m., New York City time, on the Settlement Date: (i) we shall be held liable for any and all damages which may accrue to the Company, in accordance with (a) the rules and procedures of the _____________ Stock Exchange governing the Warrants, and (b) market custom and usage; (ii) we shall be held liable to our client for, and agree to hold the Company and the Warrant Agent harmless against any liability resulting from, any and all damages which may accrue to such client with respect to such failure; (iii) we will promptly pay to the Company any funds credited to our account in excess of the aggregate Cash Settlement Value of the Exercised Warrants that we fail to transfer to the Warrant Account on the Settlement Date; and (iv) we agree that, at such time as transfer of the Warrants to which this irrevocable Notice of Exercise relates is made, the Cash Settlement Value for such Warrants will be determined in accordance with the Warrant Agreement as if such warrants had been timely transferred as required in paragraph 3 above. 35 Page 3 Capitalized terms used herein and not defined have the meanings assigned thereto in the Warrant Agreement. Dated: --------, ---- [NAME OF DEPOSITORY PARTICIPANT] By ----------------------------- Authorized Signature [Address] Telephone: -------------------- Facsimile: -------------------- Participant Number: ------------ 36 Page 4 CONFIRMATION OF EXERCISE We hereby confirm that the total number of Warrants mentioned above (the "Exercised Warrants") have been exercised at a Spot Rate of ______________ per U.S. $1.00 and that the aggregate Cash Settlement Value of U.S. $ __________ (U.S $ ____per warrant) will be made available to the [The Depository Trust Company] in the form of a treasurer's check or an official check for payment against transfer of warrants, in New York Clearing House funds, two New York Business Days after the date hereof. Capitalized terms included herein but not defined have the meanings assigned thereto in the Warrant Agreement, dated as of _________, ____, between ASARCO Incorporated and [name of Warrant Agent], as Warrant Agent. Dated: -----------, ---- [name of Warrant Agent], as Warrant Agent By ----------------------- Authorized Officer NOTICE OF REJECTION You are hereby notified that we were not able to verify that you are a participant of [The Depository Trust Company] in the manner, and pursuant to the procedures, set forth in the Warrant Agreement, dated as of ____________, _____ between ASARCO Incorporated and [name of Warrant Agent], as Warrant Agent. Accordingly, we have rejected your irrevocable Notice of Exercise as being unsatisfactory as to form. Dated: -----------, ---- [name of Warrant Agent], as Warrant Agent By ------------------------- Authorized Officer EX-5.1 9 OPINION OF WHITE & CASE 1 EXHIBIT 5.1 WHITE & CASE 1155 AVENUE OF THE AMERICAS NEW YORK, NEW YORK 10036 (212) 819-8200 October 12, 1994 ASARCO Incorporated 180 Maiden Lane New York, New York 10038 Dear Sirs: We refer to the Registration Statement on Form S-3 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), in the form in which it is to be filed today by Asarco Incorporated, a New Jersey corporation ("Asarco"), with the Securities and Exchange Commission (the "Commission"), relating to (A) up to $300,000,000 aggregate principal amount or initial offering price of Asarco's (i) debt securities or convertible debt securities consisting of debentures, notes or other unsecured evidences of indebtedness to be issued from time to time pursuant to the terms of an Indenture, to be dated as of October 1, 1994, between Asarco and Chemical Bank, as Trustee, a form of which is being filed as an exhibit to the Registration Statement (the "Indenture"); (ii) shares of its preferred stock or convertible preferred stock, the specific titles, rights and terms of which will be set forth in a Certificate of Designation which will be filed (or incorporated by reference) as an exhibit to the Registration Statement ("Certificate of Designation"), fractional shares of which preferred stock may be represented by depositary receipts for depositary shares issued under a Deposit Agreement, a form of which is being filed as an exhibit to the Registration Statement ("Deposit Agreement"); (iii) shares of its common stock, and (iv) warrants to purchase such securities of Asarco or to receive such cash payments as shall be designated by Asarco pursuant to the terms of Warrant Agreements, forms of which are being filed as exhibits to the Registration Statement ("Warrant Agreements"); and (B) up to 10,353,363 outstanding shares of Asarco's common stock which may be offered and sold by a selling stockholder. The debt securities, convertible debt securities, preferred stock, convertible preferred stock, depositary shares, common stock and warrants referred to in the preceding sentence are herein collectively referred to as the "Securities." The Securities are to be sold to or through underwriters, to other purchasers or through agents. The issuance and terms of the Securities to be offered and sold by Asarco are to be authorized and approved and the manner of sale is to be determined in additional proceedings proposed to be taken by Asarco's Board of Directors or a committee thereof. We have examined the originals, or photostatic or certified copies, of such records of Asarco, certificates of officers of Asarco and of public officials and such other documents as we have deemed relevant and necessary as the basis for the opinion set forth below. We have relied upon such certificates of officers of Asarco and statements and information furnished by officers of Asarco with respect to the accuracy of material factual matters contained therein which were not independently established. In such examination we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as photostatic or certified copies, and the authenticity of the originals of such copies. Based upon our examination mentioned above, subject to the assumptions stated, and subject to such proposed additional proceedings being taken prior to the issuance of the Securities, to the terms of the Securities being otherwise in compliance with then applicable law, and, to the extent applicable to the Securities to be issued, to the execution and delivery of the Indenture, the Deposit Agreement and the Warrant Agreements, and the authorization, execution, filing and recording of one or more Certificates of Designation, it is our opinion that the Securities, upon issuance and sale by Asarco as contemplated in the Registration Statement and any amendments and Prospectus Supplements thereto, will have been duty authorized by Asarco and validly issued, fully paid and non-assessable, that outstanding shares of common 2 stock when sold by the selling stockholder, will be validly issued, fully paid and non-assessable, and that the Securities, when duly executed, authenticated, issued and delivered against payment therefor in accordance with the Indenture or the Warrant Agreements, will constitute legally binding obligations of Asarco. We consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm appearing under the caption "Legal Matters" in the Prospectus forming part of the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission. Very truly yours, WHITE & CASE EX-12.1 10 COMPUTATIONS OF EARNINGS TO FIXED CHARGES 1 EXHIBIT 12.1 ASARCO INCORPORATED STATEMENT RE COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES AND COMBINED FIXED CHARGES AND PREFERRED SHARE DIVIDEND REQUIREMENTS
JUNE 1994 1993 1992 1991 1990 1989 -------- -------- -------- ------- -------- -------- (DOLLARS IN THOUSANDS) NET EARNINGS................................. $ 31,968 $ 15,619 $(83,091) $45,957 $135,844 $224,341 ADJUSTMENTS Taxes on Income......................... 14,951 (36,503) (37,371) 2,199 15,910 56,936 Equity Earnings, Net of Taxes........... (16,947) (27,384) (2,575) (10,393) (36,451) (40,549) Cumulative Effect of Change in Accounting Principle.................. 0 (86,295) 53,964 0 0 0 Dividends received from non-consolidated associated cos. ...................... 4,501 1,676 803 2,078 2,312 1,258 Total Fixed Charges..................... 30,662 64,359 62,200 62,653 45,962 33,825 Interest Capitalized.................... (429) (4,010) (7,433) (12,347) (3,826) (1,430) Capitalized Interest Amortized.......... 797 1,629 1,825 1,840 2,363 2,082 -------- -------- -------- ------- -------- -------- EARNINGS..................................... $ 65,503 $(70,909) $(11,678) $91,987 $162,114 $276,463 ======== ======== ======== ======= ======== ======== FIXED CHARGES Interest Expense........................ $ 29,001 $ 57,321 $ 51,230 $46,227 $ 38,038 $ 28,942 Interest Capitalized.................... 429 4,010 7,433 12,347 3,826 1,430 Imputed Interest Expense................ 1,232 3,028 3,537 4,079 4,098 3,453 -------- -------- -------- ------- -------- -------- TOTAL FIXED CHARGES.......................... $ 30,662 $ 64,359 $ 62,200 $62,653 $ 45,962 $ 33,825 ======== ======== ======== ======= ======== ======== RATIO OF EARNINGS TO FIXED CHARGES........... 2.1 (1.1) (0.2) 1.5 3.5 8.2 ======== ======== ======== ======= ======== ========
EX-15.1 11 LETTER RE UNAUDITED INTERIM FINANCIAL INFORMATION 1 EXHIBIT 15.1 SECURITIES AND EXCHANGE COMMISSION 450 FIFTH STREET, N.W. WASHINGTON, D.C. 20549 Re: ASARCO Incorporated Registration on Form S-3 We are aware that our reports on our reviews of interim financial information of ASARCO Incorporated for the periods ended June 30, 1994 and March 31, 1994 dated July 22, 1994 and April 22, 1994 respectively, which are included in the Company's quarterly reports on Form 10-Q for the quarters ended June 30, 1994 and March 31, 1994 are incorporated by reference in this registration statement. Pursuant to Rule 436(c) under the Securities Act of 1933, this report should not be considered a part of the registration statement prepared or certified by us within the meaning of Sections 7 and 11 of that Act. Coopers & Lybrand L.L.P. New York, NY October 12, 1994 EX-23.1 12 CONSENT OF COOPERS & LYBRAND 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the registration statement of ASARCO Incorporated on Form S-3 (File No. ) of our report dated January 25, 1994 on our audits of the consolidated financial statements and financial statement schedules of ASARCO Incorporated as of December 31, 1993 and 1992 and for the years ended December 31, 1993, 1992, and 1991. We also consent to the reference to our firm under the caption "Experts." Coopers & Lybrand L.L.P. New York, NY October 12, 1994 EX-25.1 13 STATEMENT OF ELIGIBILITY OF TRUSTEE 1 EXHIBIT 25.1 ________________________________________________________________________________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ________________________ FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE __________________________________ CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)_______ _______________________________ CHEMICAL BANK (Exact name of trustee as specified in its charter) NEW YORK 13-4994650 (State of incorporation (I.R.S. employer if not a national bank) identification No.) 270 PARK AVENUE NEW YORK, NEW YORK 10017 (Address of principal executive offices) (Zip Code) William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) __________________________________ ASARCO INCORPORATED (Exact name of obligor as specified in its charter) NEW JERSEY 13-4924440 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification No.) 180 MAIDEN LANE NEW YORK, NY 10038 (Address of principal executive offices) (Zip Code) __________________________________ DEBT SECURITIES (Title of the indenture securities) _______________________________________________________ 2 GENERAL Item 1. General Information Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 and Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. - 2 - 3 Item 16. List of Exhibits List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977. December 31, 1980, September 9, 1982, February 28, 1985 and December 2, 1991 (see Exhibit 1 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference). 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference). 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 33-46892, which is incorporated by reference). 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference). 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, Chemical Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all the City of the New York and State of New York, on the 5th day of October, 1994. CHEMICAL BANK By /s/ Michael A. Smith --------------------------------- Michael A. Smith Assistant Vice President - 3 - 4 Exhibit 7 to Form T-1 Bank Call Notice RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF Chemical Bank of 270 Park Avenue, New York, New York 10017 and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System. at the close of business June 30, 1994, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts in Millions ASSETS Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin . . . . . . . . . . . . . . . . . . . . $ 7,253 Interest-bearing balances . . . . . . . . . . . . . . . . 4,282 Securities: Held to maturity securities . . . . . . . . . . . . . . . . . . . . 6,841 Available for sale securities . . . . . . . . . . . . . . . . . . . 14,520 Federal funds sold and securities purchased under agreements to resell in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's: Federal funds sold . . . . . . . . . . . . . . . . . . . . 2,011 Securities purchased under agreements to resell . . . . . 144 Loans and lease financing receivables: Loans and leases, net of unearned income $61,454 Less: Allowance for loan and lease losses 2,026 Less: Allocated transfer risk reserve . . . 115 ------- Loans and leases, net of unearned income, allowance, and reserve . . . . . . . . . . . . . . . . . . 59,313 Assets held in trading accounts . . . . . . . . . . . . . . . . . . 28,005 Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . . . . . . . . . . 1,334 Other real estate owned . . . . . . . . . . . . . . . . . . . . . . 553 Investments in unconsolidated subsidiaries and associated companies . . . . . . . . . . . . . . . . . . . 127 Customer's liability to this bank on acceptance outstanding . . . . . . . . . . . . . . . . . . . . . . . 1,181 Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . 564 Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,063 -------- TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . $133,191 ========
- 4 - 5 LIABILITIES Deposits In domestic offices . . . . . . . . . . . . . . . . . . . $ 48,229 Noninterest-bearing . . . . . . . . . . . . . . $17,236 Interest-bearing . . . . . . . . . . . . . . . . 30,993 ------- In foreign offices, Edge and Agreement subsidiaries, and IBF's . . . . . . . . . . . . . . . . . . . . . . . . 25,005 Noninterest-bearing . . . . . . . . . . . . . . $ 221 Interest-bearing . . . . . . . . . . . . . . . . 24,784 ------- Federal funds purchased and securities sold under agree- ments to repurchase in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's Federal funds purchased . . . . . . . . . . . . . . . . . 9,286 Securities sold under agreements to repurchase . . . . . . 2,476 Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . 2,000 Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . 19,206 Other Borrowed money: With original maturity of one year or less . . . . . . . . 7,868 With original maturity of more than one year . . . . . . . 1,033 Mortgage indebtedness and obligations under capitalized leases . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Bank's liability on acceptances executed and outstanding . . . . . 1,184 Subordinated notes and debentures . . . . . . . . . . . . . . . . . 3,500 Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . 5,893 TOTAL LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . 125,699 -------- EQUITY CAPITAL Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . 620 surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,501 Undivided profits and capital reserves . . . . . . . . . . . . . . 2,668 Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . . . . . . . . . . . (295) Cumulative foreign currency translation adjustments . . . . . . . . (2) TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . . . 7,492 -------- TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK AND EQUITY CAPITAL . . . . . . . . . . . . . . . . . $133,191 ========
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief. /s/ JOSEPH L. SCLAFANI We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct. /s/ WALTER V. SHIPLEY ) /s/ EDWARD D. MILLER ) DIRECTORS /s/ WILLIAM B. HARRISON ) - 5 - -----END PRIVACY-ENHANCED MESSAGE-----