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Proc-Type: 2001,MIC-CLEAR
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<SEC-DOCUMENT>0001068800-03-000226.txt : 20030326
<SEC-HEADER>0001068800-03-000226.hdr.sgml : 20030325
<ACCEPTANCE-DATETIME>20030326130525
ACCESSION NUMBER: 0001068800-03-000226
CONFORMED SUBMISSION TYPE: 10-K
PUBLIC DOCUMENT COUNT: 13
CONFORMED PERIOD OF REPORT: 20021231
FILED AS OF DATE: 20030326
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: ANHEUSER BUSCH COMPANIES INC
CENTRAL INDEX KEY: 0000310569
STANDARD INDUSTRIAL CLASSIFICATION: MALT BEVERAGES [2082]
IRS NUMBER: 431162835
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 10-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-07823
FILM NUMBER: 03617659
BUSINESS ADDRESS:
STREET 1: ONE BUSCH PL
CITY: ST LOUIS
STATE: MO
ZIP: 63118-1852
BUSINESS PHONE: 3147656565
MAIL ADDRESS:
STREET 1: ONE BUSCH PL
CITY: ST LOUIS
STATE: MO
ZIP: 63118-1852
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K
<SEQUENCE>1
<FILENAME>ab10k.txt
<DESCRIPTION>ANHEUSER-BUSCH COMPANIES, INC. FORM 10-K
<TEXT>
<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-K
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 2002
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934 FOR THE
TRANSITION PERIOD FROM TO
-------------- --------------
COMMISSION FILE NUMBER 1-7823
ANHEUSER-BUSCH COMPANIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
DELAWARE 43-1162835
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
ONE BUSCH PLACE, ST. LOUIS, MISSOURI 63118
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: 314-577-2000
----------------------
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH REGISTERED
------------------- ---------------------
COMMON STOCK--$1 PAR VALUE NEW YORK STOCK EXCHANGE
PREFERRED STOCK PURCHASE RIGHTS NEW YORK STOCK EXCHANGE
6 1/2% DEBENTURES DUE JANUARY 1, 2028 NEW YORK STOCK EXCHANGE
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
NONE
-------------------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
Indicate by check mark whether the registrant is an accelerated filer
(as defined in Exchange Act Rule 12b-2.) Yes X No
--- ---
As of June 28, 2002, the aggregate market value of the voting stock held by
non-affiliates of the registrant was $43,106,017,200.
Indicate the number of shares outstanding of each of the registrant's
classes of common stock, as of the latest practicable date.
$1 PAR VALUE COMMON STOCK 836,078,250 SHARES AS OF MARCH 11, 2003
DOCUMENTS INCORPORATED BY REFERENCE
<TABLE>
<S> <C>
Portions of Annual Report to Shareholders for the Year Ended
December 31, 2002......................................... PART I, PART II, and PART IV
Portions of Definitive Proxy Statement for Annual Meeting of
Shareholders on April 23, 2003............................ PART III and PART IV
</TABLE>
================================================================================
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PART I
ITEM 1. BUSINESS
Anheuser-Busch Companies, Inc. (the "Company") is a Delaware corporation
that was organized in 1979 as the holding company parent of Anheuser-Busch,
Incorporated ("ABI"), a Missouri corporation whose origins date back to 1875. In
addition to ABI, which is the world's largest brewer of beer, the Company is
also the parent corporation to a number of subsidiaries that conduct various
other business operations. The Company's operations are comprised of the
following principle business segments: domestic beer, international beer,
packaging, entertainment, and other. In 2002, domestic beer contributed 77.9% to
consolidated net sales and 93.6% to consolidated net income; international beer
contributed 4.3% and 20.6%, packaging contributed 8.8% and 4.9%, and
entertainment contributed 6.3% and 4.9% to consolidated net sales and
consolidated net income, respectively. The individual percentages above do not
add to 100% due to the impact of unallocated corporate sales and expenses, as
detailed in the Company's business segments disclosure. Financial information
with respect to the Company's business segments appears in Note 15, "Business
Segments," on pages 54-55 of the 2002 Annual Report to Shareholders, which Note
hereby is incorporated by reference.
Domestic beer volume was 101.8 million barrels in 2002 as compared with 99.7
million barrels in 2001. Domestic volume represents Anheuser-Busch brands
produced and shipped within the United States including Puerto Rico and the
Caribbean. Worldwide sales of the Company's beer brands aggregated 109.8 million
barrels in 2002 as compared with 107.2 million barrels in 2001. Worldwide beer
volume is comprised of domestic and international volume. International volume
represents Anheuser-Busch brands produced overseas by Company-owned breweries
and under license and contract brewing agreements, plus exports from the
Company's U.S. breweries to markets around the world. Total volume includes
worldwide Anheuser-Busch brand volume combined with the Company's pro rata share
of the volume of its international equity partners. Total beer volume was 127.9
million barrels and 124.4 million barrels in 2002 and 2001, respectively.
Approximately 95.7% of the Company's consolidated net sales and 97.1% of the
Company's consolidated income before income taxes is generated in the United
States. The remaining 4.3% of consolidated sales and 2.9% of consolidated income
before income taxes are spread throughout the rest of the world. As discussed
under International Beer Operations (See Item 1 of Part I--International Beer
Operations), the Company's largest foreign markets are China, the United
Kingdom, Canada and Ireland.
DOMESTIC BEER OPERATIONS
The Company's principal product is beer, produced and distributed by its
subsidiary, ABI, in a variety of containers primarily under the brand names
Budweiser, Bud Light, Bud Dry, Bud Ice, Bud Ice Light, Michelob, Michelob Light,
Michelob Golden Draft, Michelob Golden Draft Light, Michelob Black & Tan Lager,
Michelob Amber Bock, Michelob Honey Lager, Michelob Hefe-Weizen, Michelob
Marzen, Busch, Busch Light, Busch Ice, Natural Light, Natural Ice, King Cobra,
ZiegenBock Amber, Hurricane Malt Liquor, Hurricane Ice, Pacific Ridge Ale,
"Doc's" Hard Lemon, and Tequiza. ABI's products also include three non-alcohol
malt beverages, O'Doul's, Busch NA, and O'Doul's Amber. During 2002 ABI
introduced Bacardi Silver, Michelob ULTRA, and American Red and discontinued Red
Wolf Lager, "Doc's" Hard Apple, Killarney's, and Red Label. The Company brews
Kirin Light, Kirin Lager, and Kirin-Ichiban through a joint venture agreement
with Kirin Brewing Company, Ltd. of Japan for sale in the United States. ABI
owns a 29.5% equity interest in Seattle-based Redhook Ale Brewery, Inc. Through
this alliance, Redhook products are distributed by many ABI wholesalers and
exclusively by ABI wholesalers in all new U.S. markets entered by Redhook since
1994. ABI also owns a 36% interest in Portland-based Widmer Brothers Brewing
Company. Widmer products are distributed by many ABI wholesalers and exclusively
by ABI wholesalers in all new U.S. markets entered by Widmer since 1997.
Budweiser, Bud Light, Bud Dry, Bud Ice, Bud Ice Light, Michelob, Michelob
Light, Michelob Black & Tan Lager, Michelob Golden Draft, Michelob Golden Draft
Light, Michelob Amber Bock, Michelob Honey Lager, Michelob Hefe-Weizen, Michelob
ULTRA, Busch, Busch Light, Natural Light, Natural Ice, "Doc's" Hard Lemon,
ZiegenBock Amber, Kirin-Ichiban, O'Doul's, O'Doul's Amber, Bacardi Silver,
Widmer beer products,
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and Redhook Ales are sold in both draught and packaged form. Busch Ice, King
Cobra, Michelob Marzen, Hurricane Malt Liquor, Tequiza, Hurricane Ice, Kirin
Lager, Kirin Light, and Busch NA are sold only in packaged form. Pacific Ridge
Ale and American Red are sold only in draught form.
Budweiser, Bud Light, Bud Ice, Michelob, Michelob Light, Michelob ULTRA,
Michelob Amber Bock, Busch, Busch Light, Natural Light, Natural Ice, Tequiza,
"Doc's" Hard Lemon, O'Doul's, O'Doul's Amber, and Bacardi Silver are distributed
and sold on a nationwide basis. Michelob Honey Lager and Redhook Ales are sold
in 49 states; Bud Ice Light in 48 states; Bud Dry in 47 states; King Cobra in 46
states; Busch NA, Kirin-Ichiban, Michelob Black & Tan Lager, and Michelob
Hefe-Weizen in 45 states; Kirin Lager in 44 states; Hurricane Malt Liquor in 39
states; Kirin Light in 30 states; Busch Ice in 20 states; Widmer beer products
in 18 states; American Red in 17 states; Michelob Golden Draft Light in 13
states; Michelob Golden Draft in 11 states; Pacific Ridge Ale in 4 states;
Hurricane Ice and ZiegenBock Amber in 1 state.
ABI has developed a system of twelve breweries, strategically located across
the country, to economically serve its distribution system. (See Item 2 of Part
I--Properties.) Ongoing modernization programs at the Company's breweries are
part of ABI's overall strategic initiatives. By using controlled environment
warehouses and stringent inventory monitoring policies, the quality and
freshness of the product are protected, thus providing ABI a significant
competitive advantage.
During 2002, approximately 94.2% of the beer sold by ABI, measured in
barrels, reached retail channels through more than 600 independent wholesalers.
ABI utilizes its regional vice-presidents, sales directors, key account and
market managers, as well as certain other field sales personnel, to provide
sales strategic planning and merchandising assistance to its wholesalers. In
addition, ABI provides national and local media advertising, point-of-sale
advertising, and sales promotion programs to promote its brands. The remainder
of ABI's domestic beer sales in 2002 were made through thirteen branches which
perform similar sales, merchandising, and delivery services as wholesalers in
their respective areas; these branches are owned and operated by the Company or
direct or indirect subsidiaries of the Company. ABI's peak selling periods are
the second and third quarters.
There are more than 100 companies engaged in the highly competitive brewing
industry in the United States. ABI's domestic beers are distributed and sold in
competition with other nationally distributed beers, with locally and regionally
distributed beers and with imported beers. Although the methods of competition
in the industry vary widely, in part due to differences in applicable state
laws, the principal methods of competition are product quality, taste and
freshness, packaging, price, advertising (including television, radio,
sponsorships, billboards, stadium signs, and print media), point-of-sale
materials, and service to retail customers. ABI's beers compete in different
price categories. Although all brands compete against the total market,
Budweiser, Bud Light, Bud Dry, Bud Ice, Bud Ice Light, Michelob Golden Draft,
and Michelob Golden Draft Light compete primarily with premium priced beers.
Busch, Busch Light, Natural Light, Busch Ice, and Natural Ice compete with the
sub-premium or popular priced beers. King Cobra, Hurricane Malt Liquor, and
Hurricane Ice compete against other brands in the malt liquor segment. Michelob,
Michelob Light, Michelob Amber Bock, Kirin Lager, Kirin Light, Kirin-Ichiban,
Michelob Honey Lager, Michelob Black & Tan Lager, Tequiza, ZiegenBock Amber,
Michelob Hefe-Weizen, Pacific Ridge Ale, "Doc's" Hard Lemon, Michelob Marzen,
Bacardi Silver, Michelob ULTRA, American Red, the Redhook products, and Widmer
beer products compete primarily in the above premium beers segment of the malt
beverage market. O'Doul's and O'Doul's Amber (premium priced) and Busch NA
(sub-premium priced) compete in the non-alcohol malt beverage category. Since
1957, ABI has led the United States brewing industry in total sales volume. In
2002, its sales exceeded those of its nearest competitor by more than 63 million
barrels. ABI's domestic market share (excluding exports) for 2002 was 49.2%.
Major competitors in the United States brewing industry during 2002 included
SABMiller, Adolph Coors Co., Pabst Brewery Co., Grupo Modelo, S.A. de C.V., and
Heineken.
The Company has also entered the alternative beverage segment with its
energy drink "180". 180 is distributed and sold on a nationwide basis and is
available in single eight-ounce slim-line cans.
The Company's wholly-owned subsidiary, Busch Agricultural Resources, Inc.
("BARI"), operates rice milling facilities in Arkansas and California; eleven
grain elevators in the western and midwestern United States; barley seed
processing plants in Fairfield, Montana, Idaho Falls, Idaho, and Powell,
Wyoming; a barley
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research facility in Ft. Collins, Colorado; and a rice research facility in
California. BARI also owns and operates malt plants in Manitowoc, Wisconsin,
Moorhead, Minnesota, and Idaho Falls, Idaho. Through wholly-owned subsidiaries,
BARI operates land application farms in Jacksonville, Florida and Fort Collins,
Colorado; hop farms in Bonners Ferry, Idaho and Huell, Germany; and a barley
office in Winnipeg, Canada.
Another wholly-owned subsidiary, Wholesaler Equity Development Corporation,
shares equity positions with qualified partners in independent beer
wholesalerships and is currently invested in six wholesalerships.
INTERNATIONAL BEER OPERATIONS
International beer volume was nearly 8.0 million barrels in 2002, compared
with 7.5 million barrels in 2001. Anheuser-Busch International, Inc. ("ABII"), a
wholly-owned subsidiary of the Company, oversees the marketing and sale of
Budweiser and other ABI brands outside the U.S., operates breweries in the
United Kingdom (U.K.) and China, negotiates and administers license and contract
brewing agreements on behalf of ABI with various foreign brewers, and negotiates
and manages equity investments in foreign brewing partners. ABI's beer products
are being sold in more than 80 countries and U.S. territories.
Through Anheuser-Busch Europe Limited ("ABEL"), an indirect, wholly-owned
subsidiary of the Company, certain ABI beer brands are marketed, distributed,
and sold in twenty-nine European countries. In the U.K., ABEL sells Budweiser,
Bud Ice, Michelob, and Michelob Golden Draft brands to selected on-premise
accounts, brewers, wholesalers, and directly to off-premise accounts. Budweiser,
Bud Ice, and Michelob are brewed and packaged at the Stag Brewery near London,
England which is managed and operated by ABEL. Michelob Golden Draft continues
to be imported into the U.K. by ABEL.
In Canada, Budweiser, Bud Light, Busch and Busch Light are brewed and sold
through a license agreement with Labatt Brewing Co. In Japan, Budweiser is
brewed and sold through a license agreement with Kirin Brewery Company, Limited.
Budweiser is also brewed under license and sold by brewers in Korea (Oriental
Brewery Co., Ltd.), the Republic of Ireland and Northern Ireland (Guinness
Ireland Limited), Italy (Birra Peroni Industriale), and Spain (Sociedad Anonima
Damm). The Company has an agreement with Brasseries Kronenbourg, the leading
brewer in France, for sale and distribution of Bud in France.
In 1995, the Company formed an alliance with Compana Cerveceras Unidas S.A.
("CCU"), the leading Chilean brewer. Under the terms of the alliance, a
subsidiary of CCU in Argentina ("CCU-Argentina") brews and distributes Budweiser
under license in Argentina and Uruguay, and under contract for sale in Chile and
Brazil. CCU also distributes Budweiser in Chile. The Company has a direct and
indirect ownership interest of approximately 29% of CCU-Argentina. During the
first quarter of 2001, the Company purchased approximately 20% of CCU.
In 1995, the Company purchased an initial 80% equity interest in a joint
venture, renamed the Budweiser Wuhan International Brewing Company, Ltd., that
owns and operates a brewery in Wuhan, the fifth-largest city in China. This
ownership interest has subsequently increased to 97%. The Company currently owns
a 4.5% equity interest in Tsingtao Brewery Company, Ltd., the largest brewer in
China, and producer of the Tsingtao brand. In October 2002, the Company entered
into an agreement with Tsingtao whereby the Company will invest $182 million in
Tsingtao common stock and convertible bonds and will ultimately increase its
economic ownership interest to 27% of Tsingtao over the next seven years.
In 1993, Anheuser-Busch purchased a 17.7% direct and indirect equity
interest in Grupo Modelo's operating subsidiary, Diblo, for $477 million. As
noted in Note 2 "International Equity Investments", on page 46 of the 2002
Annual Report, which Note is hereby incorporated by reference, Diblo is the
operating subsidiary of Grupo Modelo, Mexico's largest brewer. Accordingly,
Diblo operates in Mexico and is a brewer. In May 1997, the Company increased its
direct and indirect equity ownership in Diblo to 37% for an additional $605
million. In September 1998, the Company completed the purchase of an additional
13.25% of Diblo for $556.5 million, bringing the Company's total investment to
$1.6 billion. The Company now owns a 50.2% direct and indirect interest in
Diblo. However, the Company does not have voting or other effective control in
either Grupo Modelo or Diblo.
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The Company's International Beer segment competitors differ significantly
depending upon the specific country involved. For 2002, no single foreign
country or region accounted for more than 2.4% of consolidated revenues or 1.8%
of consolidated income before income taxes. The amount of revenues and income
before income taxes generated from any individual foreign country is immaterial
to the Company's consolidated financial statements, taken as a whole.
Accordingly, no single competitor for the International Beer segment can have a
material impact on the Company's sales or income.
The Company's primary foreign markets are China, the United Kingdom, Canada
and Ireland. In each international market, the Company competes against a mix of
national, regional, local and imported beer brands. In China, competition is
primarily from numerous local and regional brands. There is no dominant
competitor in China. In the United Kingdom, the top four competitors--Scottish
Courage, Coors Brewers, Interbrew, and Carlsberg-Tetley--have combined market
share of nearly 73%, with Scottish Courage having a share of approximately 25%.
The Company's share is 3%. In Ireland, the market leader is the Company's
license brewing partner, Guinness UDV, with a market share of more than 70%
including a share of 17% related to the Company's products. In Canada, the top
two competitors, of similar size, are Molson and the Company's license brewing
partner, Labatt Brewing. Their combined market share is more than 85% including
a share of 12% related to the Company's products.
Financial information with respect to the Company's business segments
appears in Note 15, "Business Segments," on pages 54-55 of the 2002 Annual
Report, which Note is hereby incorporated by reference.
PACKAGING OPERATIONS
The Company's packaging operations are handled through the following
wholly-owned subsidiaries of the Company: Metal Container Corporation ("MCC"),
which manufactures beverage cans at eight plants and beverage can lids at three
plants for sale to ABI, U.S. soft drink customers, and Grupo Modelo (See Item 2
of Part 1--Properties); Anheuser-Busch Recycling Corporation ("ABRC") which buys
and sells used beverage containers from its corporate office in Sunset Hills,
Missouri and recycles aluminum cans at its plant in Hayward, California;
Precision Printing and Packaging, Inc. ("PPPI"), which manufactures metalized
and paper labels at its plant in Clarksville, Tennessee; and Eagle Packaging,
Inc. ("EPI"), which manufactures crown and closure liner materials for ABI at
its plant in Bridgeton, Missouri.
Through a wholly-owned limited partnership known as Longhorn Glass
Manufacturing, L.P., the Company owns and operates a glass manufacturing plant
in Jacinto City, Texas, which manufactures glass bottles for the Company's
nearby Houston brewery.
FAMILY ENTERTAINMENT
The Company is active in the family entertainment field, primarily through
its wholly-owned subsidiary, Busch Entertainment Corporation ("BEC"), which
currently owns, directly and through subsidiaries, nine theme parks.
BEC operates Busch Gardens theme parks in Tampa, Florida and Williamsburg,
Virginia, and SeaWorld theme parks in Orlando, Florida, San Antonio, Texas, and
San Diego, California. BEC operates water park attractions in Tampa, Florida
(Adventure Island) and Williamsburg, Virginia (Water Country, U.S.A.), and
Langhorne, Pennsylvania (Sesame Place), as well as Discovery Cove in Orlando,
Florida, a reservations-only attraction offering interaction with marine
animals. Due to the seasonality of the theme park business, BEC experiences
higher revenues in the second and third quarters than in the first and fourth
quarters.
Through a Spanish affiliate, the Company also owns a 16.1% equity interest
in Port Aventura, S.A., which is a theme park near Barcelona, Spain.
The Company is the third largest theme park operator in the United States.
It faces competition in the family entertainment field from other theme and
amusement parks, public zoos, public parks, and other family entertainment
events and attractions. Major competitors in the theme park industry during 2002
include Walt Disney Co. and Six Flags Parks. No reliable national market share
information is available for the theme park industry.
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OTHER
Through its wholly-owned subsidiary, Busch Properties, Inc. ("BPI"), the
Company is engaged in the business of real estate development. BPI also owns and
operates The Kingsmill Resort and Conference Center in Williamsburg, Virginia.
Through a wholly-owned subsidiary, the Company owns and operates a
transportation service business (Manufacturers Railway Co.).
SOURCES AND AVAILABILITY OF RAW MATERIALS
The products manufactured by the Company require a large volume of various
agricultural products, including hops, malt (barley), rice, and corn grits for
beer; and rice and barley for the rice milling and malting operations of BARI.
The Company fulfills its commodities requirements through purchases from various
sources, including purchases from its subsidiaries, through contractual
arrangements, and through purchases on the open market. The Company believes
that adequate supplies of the aforementioned agricultural products are available
at the present time, but cannot predict future availability or prices of such
products and materials. The above referenced commodities have experienced and
will continue to experience price fluctuations. The price and supply of raw
materials will be determined by, among other factors, the level of crop
production both in the U.S. and around the world, weather conditions, export
demand, and government regulations and legislation affecting agriculture and
trade.
The Company uses water in brewing its beer. The Company generally satisfies
its requirements for water from municipal water systems and privately owned
wells.
The Company also requires aluminum cansheet for the manufacture of cans and
lids. The cansheet market experiences price volatility due to the supply and
demand balance for both aluminum ingot and sheet fabrication. The Company
manages its aluminum supply and cost using various methods including long-term
purchase contracts and hedging techniques.
ENERGY MATTERS
The Company uses natural gas, fuel oil, and coal as its primary fuel
materials. The Company believes that adequate supplies of fuel and electricity
are available at the present time, but cannot predict future availability or
market prices. Where economically feasible, the Company has alternate fuel
capability and limited electric generation which helps ensure continued
operation of essential processes.
The energy commodity markets have experienced and will continue to
experience significant price volatility due to perceived volatility of both
supply and demand. The Company manages its energy costs using various methods
including supply contracts, hedging techniques, and fuel switching.
BRAND NAMES AND TRADEMARKS
Some of the Company's major brand names used in its principal business
segments are mentioned in the discussion above. The Company regards consumer
recognition of and loyalty to all of its brand names and trademarks as extremely
important to the long-term success of its principal business segments. The
Company owns rights to its principal brand names and trademarks in perpetuity.
RESEARCH AND DEVELOPMENT
The Company is involved in a number of research activities relating to the
development of new products or services or the improvement of existing products
or services. The dollar amounts expended by the Company during the past three
years on such research activities and the number of employees engaged full time
therein during such period, however, are not considered to be material in
relation to the total business of the Company.
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ENVIRONMENTAL PROTECTION
All of the Company's facilities are subject to federal, state, and local
environmental protection laws and regulations, and the Company is operating
within existing laws and regulations or is taking action aimed at assuring
compliance therewith. Various proactive strategies are utilized to help assure
this compliance. Compliance with such laws and regulations is not expected to
materially affect the Company's capital expenditures, earnings, or competitive
position. The Company has devoted considerable effort to research, development,
and engineering of cost effective innovative systems to minimize effects on the
environment from its operating facilities.
These projects, coupled with the Company's Environmental Management System
and an overall Company emphasis on pollution prevention and resource
conservation initiatives, are improving efficiencies and creating saleable
by-products from residuals. They have generally resulted in low cost operating
systems while reducing impact to air, water, and land.
ENVIRONMENTAL PACKAGING LAWS AND REGULATIONS
The states of California, Connecticut, Delaware, Iowa, Maine, Massachusetts,
Michigan, New York, Oregon, and Vermont have adopted certain restrictive
packaging laws and regulations for beverages that require deposits on packages.
The state of Hawaii has passed a deposit law that is scheduled to go into effect
in 2005. ABI continues to do business in these states. While such laws have not
had a significant effect on ABI's market share, they have had a significant
adverse impact on beer industry growth and are considered by the Company to be
inflationary, costly, and inefficient for recycling packaging materials.
Congress and a number of additional states continue to consider similar
legislation, the adoption of which might require the Company to incur
significant capital expenditures to comply.
NUMBER OF EMPLOYEES
As of December 31, 2002, the Company had 23,176 full-time employees.
As of December 31, 2002, approximately 8,850 employees were represented by
the International Brotherhood of Teamsters. Seventeen other unions represented
approximately 1,200 employees. The current labor agreement between ABI and the
Brewery and Soft Drink Conference of the International Brotherhood of Teamsters,
which represents the majority of brewery workers, expires February 2004.
The Company considers its employee relations to be good.
AVAILABLE INFORMATION
The Company maintains a website on the World Wide Web at
www.anheuserbusch.com. The Company makes available, free of charge, on its
website its annual report on Form 10-K, quarterly reports on Form 10-Q, current
reports on Form 8-K and amendments to those reports filed or furnished pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, as
soon as reasonably practicable after such reports are electronically filed with,
or furnished to, the SEC. The Company's reports filed with, or furnished to, the
SEC are also available at the SEC's website at www.sec.gov.
ITEM 2. PROPERTIES
ABI has twelve breweries in operation at the present time, located in St.
Louis, Missouri; Newark, New Jersey; Los Angeles and Fairfield, California;
Jacksonville, Florida; Houston, Texas; Columbus, Ohio; Merrimack, New Hampshire;
Williamsburg, Virginia; Baldwinsville, New York; Fort Collins, Colorado; and
Cartersville, Georgia. Title to the Baldwinsville, New York brewery is held by
the Onondaga County Industrial Development Agency ("OCIDA") pursuant to a Sale
and Agency Agreement with ABI, which enabled OCIDA to issue tax exempt pollution
control and industrial development revenue notes and bonds to finance a portion
of the cost of the purchase and modification of the brewery. The brewery is not
pledged or mortgaged to secure any of the notes or bonds, and the Sale and
Agency Agreement with OCIDA gives ABI the unconditional right to require at
any time that title to the brewery be transferred to ABI. ABI's breweries
operated at
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approximately 96% of capacity in 2002; during the peak selling periods (second
and third quarters), they operated at maximum capacity. The Company also owns a
97% equity interest in a joint venture that owns and operates a brewery in
Wuhan, China. The Company also leases and operates the Stag Brewery near London,
England.
The Company, through wholly-owned subsidiaries, operates malt plants in
Manitowoc, Wisconsin, Moorhead, Minnesota, and Idaho Falls, Idaho; rice mills in
Jonesboro, Arkansas and Woodland, California; hop farms in Bonners Ferry, Idaho
and Huell, Germany; can manufacturing plants in Jacksonville, Florida, Columbus,
Ohio, Arnold, Missouri, Windsor, Colorado, Newburgh, New York, Ft. Atkinson,
Wisconsin, Rome, Georgia, and Mira Loma, California; can lid manufacturing
plants in Gainesville, Florida, Oklahoma City, Oklahoma, and Riverside,
California; a crown and closure liner material plant in Bridgeton, Missouri; and
an aluminum can recycling plant in Hayward, California. The Company operates a
glass manufacturing plant in Jacinto City, Texas through a wholly-owned limited
partnership.
BEC operates its principal family entertainment facilities in Tampa,
Florida; Williamsburg, Virginia; San Diego, California; Orlando, Florida; and
San Antonio, Texas. The Tampa facility is 336 acres, Williamsburg is 319 acres,
San Diego is 182 acres, Orlando is 247 acres, and the San Antonio facility is
316 acres.
Except for the Baldwinsville brewery, the can manufacturing plants in
Newburgh, New York and Rome, Georgia, the SeaWorld park in San Diego,
California, the Stag Brewery, and the brewery in Wuhan, China, all of the
Company's principal properties are owned in fee. The lease for the land used by
the SeaWorld park in San Diego, California expires in 2048. The Company leases
the Stag Brewery from Scottish Courage, Ltd. In 1995, the joint venture that
operates the brewery in Wuhan was granted the right to use the property for a
period of 50 years from the appropriate governmental authorities. The Company
also leases a bottling line at its brewery in Cartersville, Georgia. The Company
considers its buildings, improvements, and equipment to be well maintained and
in good condition, irrespective of dates of initial construction, and adequate
to meet the operating demands placed upon them. The production capacity of each
of the manufacturing facilities is adequate for current needs and, except as
described above, substantially all of each facility's capacity is utilized.
ITEM 3. LEGAL PROCEEDINGS
ABI is negotiating with the State of Colorado, Colorado Division of Public
Health and Environment to resolve a number of violations of the Company's Ft.
Collins Brewery air permit. The facility environmental manager failed to
accurately and timely complete various reports and other tasks required under
the facility's Title V air permit. Emission limits were not violated. The
responsible individual did not disclose the facts to Company management and the
Company was not otherwise aware of the reporting deficiencies. The situation was
discovered by the Company in a scheduled audit in August of 2002. The
environmental manager in question is no longer employed by the Company. The
facts were promptly reported to Colorado and EPA authorities on September 12,
2002. The Company submitted a formal disclosure report and corrected the
erroneous records involved by October 18, 2002.
Although the Company cannot presently predict the outcome of this matter, it
is the opinion of management that the ultimate resolution of this matter will
not materially affect the company's financial position, results of operations or
liquidity.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of security holders, through the
solicitation of proxies or otherwise, during the fourth quarter ended December
31, 2002.
7
<PAGE>
<PAGE>
EXECUTIVE OFFICERS OF THE REGISTRANT
PATRICK T. STOKES (age 60) is presently President and Chief Executive
Officer and a Director of the Company and has served in such capacities since
2002, 2002, and 2000, respectively. He previously served as Senior Executive
Vice President (2000-2002) and Vice President and Group Executive (1981-2000) of
the Company. He is also presently Chairman and Chief Executive Officer of the
Company's subsidiary, Anheuser-Busch, Incorporated, and has served in such
capacities since 2002 and 2000, respectively, and Chairman of the Board of the
Company's subsidiary, Anheuser-Busch International, Inc., and has served in such
capacity since 1999. He previously served as President of Anheuser-Busch,
Incorporated (1990-2002).
AUGUST A. BUSCH III (age 65) is presently Chairman of the Board and a
Director of the Company and has served in such capacities since 1977 and 1963,
respectively. He previously served as President of the Company (1974-2002). He
also serves as Executive Vice President of the Company's subsidiary,
Anheuser-Busch, Incorporated and has served in such capacity since 2002, and had
previously served as its Chairman of the Board (1979-2002) and also as its Chief
Executive Officer (1979-2000).
W. RANDOLPH BAKER (age 56) is presently Vice President and Chief Financial
Officer of the Company and has served in such capacity since 1996.
STEPHEN K. LAMBRIGHT (age 60) is presently Group Vice President and General
Counsel of the Company and has served in such capacity since 1997.
DONALD W. KLOTH (age 61) is presently Vice President and Group Executive of
the Company and has served in such capacity since 1994. He is also Chairman of
the Board and Chief Executive Officer of the Company's subsidiary, Busch
Agricultural Resources, Inc., and has served in such capacity since 1994.
JOHN E. JACOB (age 68) is presently Executive Vice President-Global
Communications and a Director of the Company and has served in such capacities
since 2002 and 1990, respectively. He previously served as its Executive Vice
President and Chief Communications Officer (1994-2002). He also serves as
Executive Vice President of the Company's subsidiary, Anheuser-Busch,
Incorporated and has served in such capacity since 2002.
THOMAS W. SANTEL (age 44) is presently Vice President-Corporate Development
of the Company and has served in such capacity since 1996.
STEPHEN J. BURROWS (age 51) is presently Vice President-International
Operations of the Company and has served in such capacity since 1999. He
previously served as Vice President-International Marketing of the Company
(1992-1998). He is also presently Chief Executive Officer and President of the
Company's subsidiary, Anheuser-Busch International, Inc., and has served as
Chief Executive Officer since 1999 and as President since 1994. During the past
five years, he also served as Chief Operating Officer of Anheuser-Busch
International, Inc. (1994-1998).
AUGUST A. BUSCH IV (age 38) is presently Vice President and Group Executive
of the Company and has served in such capacity since 2000. He is also presently
President of the Company's subsidiary, Anheuser-Busch, Incorporated, and has
served in such capacity since 2002 and had previously served as its Group Vice
President-Marketing and Wholesale Operations (2000-2002) and its Vice
President-Marketing (1996-2000).
MARK T. BOBAK (age 43) is presently Vice President-Corporate Human Resources
of the Company and has served in such capacity since 2000. He had previously
served as Vice President and Deputy General Counsel of the Company (1998-2000)
and Vice President-Litigation (1996-1998) of the Company.
JOSEPH P. SELLINGER (age 57) is presently Vice President and Group Executive
of the Company and has served in such capacity since 2000. He is also presently
Chairman, Chief Executive Officer and President of the Company's direct
subsidiaries, Anheuser-Busch Packaging Group, Inc., Anheuser-Busch Recycling
Corporation, Metal Container Corporation, Eagle Packaging, Inc., and Precision
Printing and Packaging, Inc., and has served in all such capacities since 2000.
He had previously served as Vice President-Operations of the Company's
subsidiary, Anheuser-Busch, Incorporated (1992-2000).
8
<PAGE>
<PAGE>
DOUGLAS J. MUHLEMAN (age 49) is presently Group Vice President-Brewing
Operations and Technology of the Company's subsidiary, Anheuser-Busch,
Incorporated, and has served in such capacity since 2001 and had previously
served as its Vice President-Brewing (1996-2001).
FRANCINE I. KATZ (age 45) is presently Vice President-Corporate
Communications of the Company and has served in such capacity since July, 2002.
She previously served as its Vice President-Consumer Affairs (January,
2002-June, 2002) and its Vice President-Consumer Awareness and Education
(1994-2001).
KEITH M. KASEN (age 59) is presently Chairman of the Board and President of
the Company's subsidiary, Busch Entertainment Corporation, and has served in
such capacities since February, 2003. During the past five years, he also served
as Executive Vice President and General Manager of the SeaWorld theme park in
Orlando, Florida (2000-February, 2003) and in San Antonio, Texas (1997-2000).
PART II
The information required by Items 5 (except as set forth below), 6, 7, and 8
of this Part II are hereby incorporated by reference from pages 26 through 59 of
the Company's 2002 Annual Report to Shareholders.
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
On October 1, 2002, the Company issued out of treasury shares a total of 156
shares of the Company's common stock ($1 par value) to four members of the Board
of Directors of the Company in lieu of cash to reflect an increase in the annual
retainer fee pursuant to the Company's Non-Employee Director Elective Stock
Acquisition Plan. The transaction was exempt from registration and prospectus
delivery requirements of the Securities Act of 1933 pursuant to Section 4(2) of
the Act.
ITEM 6. SELECTED FINANCIAL DATA
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by this Item with respect to Directors is hereby
incorporated by reference from pages 7 through 9 of the Company's Proxy
Statement for the Annual Meeting of Shareholders on April 23, 2003. The
information required by this Item with respect to Executive Officers is
presented on pages 8 and 9 of this Form 10-K.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this Item is hereby incorporated by reference
from page 11 and pages 20 through 23 of the Company's Proxy Statement for the
Annual Meeting of Shareholders on April 23, 2003.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND
RELATED STOCKHOLDER MATTERS
The information required by this Item pursuant to Item 403 of Regulation S-K
is hereby incorporated by reference from pages 10 and 11 of the Company's Proxy
Statement for the Annual Meeting of Shareholders on April 23, 2003. The
information required by this Item pursuant to Item 201(d) of Regulation S-K is
hereby incorporated by reference from page 28 of the Company's Proxy Statement
for the Annual Meeting of Shareholders on April 23, 2003.
9
<PAGE>
<PAGE>
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this Item is hereby incorporated by reference
from pages 29 and 30 of the Company's Proxy Statement for the Annual Meeting of
Shareholders on April 23, 2003.
ITEM 14. CONTROLS AND PROCEDURES
It is the responsibility of the Company's chief executive officer and chief
financial officer to ensure the Company maintains disclosure controls and
procedures designed to provide reasonable assurance that material information,
both financial and non-financial, and other information required under the
securities laws to be disclosed is identified and communicated to senior
management on a timely basis. The Company's disclosure controls and procedures
include mandatory communication of material subsidiary events, automated
accounting processing and reporting, management review of monthly and quarterly
results, periodic subsidiary business reviews, an established system of internal
controls and rotating internal controls reviews by the Company's internal
auditors.
During the 90-day period prior to the date of this report, the chief
executive and chief financial officers evaluated the Company's disclosure
controls and procedures and have concluded that they are effective in
identifying and communicating on a timely basis the material information and
other information required to be disclosed in the Company's securities filings.
Additionally, there have been no significant changes to the Company's internal
controls or in other factors that could significantly affect these controls
since such evaluation.
10
<PAGE>
<PAGE>
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULE, AND REPORTS ON FORM 8-K
(a) THE FOLLOWING DOCUMENTS ARE FILED AS PART OF THIS REPORT:
<TABLE>
<CAPTION>
1. FINANCIAL STATEMENTS: PAGE
----
<S> <C>
Consolidated Balance Sheet at December 31, 2002 and 2001 40*
Consolidated Statement of Income for the three years ended
December 31, 2002 41*
Consolidated Statement of Changes in Shareholders Equity for the
three years ended December 31, 2002 42*
Consolidated Statement of Cash Flows for the three years ended
December 31, 2002 43*
Notes to Consolidated Financial Statements and Supplementary
Information 44-59*
Report of Independent Accountants 39*
<FN>
*Incorporated herein by reference from the indicated pages of the 2002
Annual Report to Shareholders.
<S> <C>
2. FINANCIAL STATEMENT SCHEDULE:
Report of Independent Accountants on Financial Statement Schedule F-1
For the three years ended December 31, 2002:
Schedule II--Valuation and Qualifying Accounts and Reserves F-2
3. EXHIBITS:
Exhibit 3.1 --Restated Certificate of Incorporation
(Incorporated by reference to Exhibit 3.1 to
Form 10-K for the fiscal year ended
December 31, 1999).
Exhibit 3.2 --By-Laws of the Company (As amended and
restated April 24, 2002).
Exhibit 4.1 --Form of Rights Agreement, dated as of
October 26, 1994 between Anheuser-Busch Companies,
Inc. and Boatmen's Trust Company (Incorporated by
reference to Exhibit 4.1 to Form 10-K for the
fiscal year ended December 31, 1999).
Exhibit 4.2 --Letter Agreement dated March 19, 1998 between
Anheuser-Busch Companies, Inc., Boatmen's
Trust Company, and ChaseMellon Shareholder
Services, L.L.C. amending the Form of Rights
Agreement filed as Exhibit 4.1 of this report
(Incorporated by reference to Exhibit 4.2 to
Form 10-K for the fiscal year ended
December 31, 1998).
Exhibit 4.3 --Indenture dated as of August 1, 1995 between
the Company and The Chase Manhattan Bank, as
Trustee (Incorporated by reference to Exhibit 4.1
in the Form S-3 of the Company, Registration
Statement No. 33-60885).
Exhibit 4.4 --Indenture dated as of July 1, 2001 between
the Company and The Chase Manhattan Bank, as
Trustee. Other indentures are not filed, but the
Company agrees to furnish copies of such
instruments to the Securities and Exchange
Commission upon request.
11
<PAGE>
<PAGE>
Exhibit 4.5 --Credit Agreement dated as of June 30, 2000
among the Company, ABI and The Chase Manhattan
Bank, as Administrative Agent (Incorporated by
reference to Exhibit 4.4 to Form 10-K for the
fiscal year ended December 31, 2000).
Exhibit 10.1 --Anheuser-Busch Companies, Inc. Deferred
Compensation Plan for Non-Employee Directors
amended and restated as of March 1, 2000
(Incorporated by reference to Exhibit 10.1 to
Form 10-K for the fiscal year ended
December 31, 1999).*
Exhibit 10.2 --Anheuser-Busch Companies, Inc. Non-Employee
Director Elective Stock Acquisition Plan amended
and restated as of March 1, 2000 (Incorporated by
reference to Exhibit 10.2 to Form 10-K for the
fiscal year ended December 31, 1999).*
Exhibit 10.3 --Anheuser-Busch Companies, Inc. Stock Plan
for Non-Employee Directors as amended and restated
(Incorporated by reference to Appendix B to the
Definitive Proxy Statement for Annual Meeting of
Shareholders on April 23, 2003).*
Exhibit 10.4 --Anheuser-Busch Companies, Inc. 1989 Incentive
Stock Plan (As amended December 20, 1989,
December 19, 1990, December 15, 1993, December 20,
1995, and November 26, 1997).*
Exhibit 10.5 --Anheuser-Busch Companies, Inc. 1998 Incentive
Stock Plan as restated.*
Exhibit 10.6 --Anheuser-Busch Companies, Inc. Excess
Benefit Plan amended and restated as of March 1,
2000 (Incorporated by reference to Exhibit 10.9 to
Form 10-K for the fiscal year ended December 31,
1999).*
Exhibit 10.7 --Anheuser-Busch Global Employee Stock Purchase
Plan.*
Exhibit 10.8 --Anheuser-Busch Companies, Inc. Supplemental
Executive Retirement Plan amended and restated as
of March 1, 2003.*
Exhibit 10.9 --Anheuser-Busch Executive Deferred Compensation
Plan amended and restated as of January 1, 2002.*
Exhibit 10.10--Anheuser-Busch 401(k) Restoration Plan amended
and restated as of March 1, 2000 (Incorporated
by reference to Exhibit 10.12 to Form 10-K for
the fiscal year ended December 31, 1999).*
Exhibit 10.11--Form of Indemnification Agreement with Directors
and Executive Officers (Incorporated by
reference to Exhibit 10.13 to Form 10-K for the
fiscal year ended December 31, 1999).*
Exhibit 10.12--Anheuser-Busch Officer Bonus Plan as
amended and restated on November 24, 1999
(Incorporated by reference to Exhibit A to the
Definitive Proxy Statement for Annual Meeting of
Shareholders on April 26, 2000).*
Exhibit 10.13--Investment Agreement By and Among Anheuser-Busch
Companies, Inc., Anheuser-Busch International, Inc.
and Anheuser-Busch International Holdings, Inc.
and Grupo Modelo, S.A. de C.V., Diblo, S.A. de C.V.
and certain shareholders thereof, dated as of
June 16, 1993 (Incorporated by reference to
Exhibit 10.15 to Form 10-K for the fiscal year
ended December 31, 1999).
Exhibit 10.14--Letter agreement between Anheuser-Busch
Companies, Inc. and the Controlling Shareholders
regarding Section 5.5 of the Investment Agreement
filed as Exhibit 10.12 of this report (Incorporated
by reference to Exhibit 10.15 to Form 10-K for the
fiscal year ended December 31, 1999).
Exhibit 10.15--Consulting and Indemnification Agreement and
Amendment between the Company and a Director of
the Company.*
12
<PAGE>
<PAGE>
Exhibit 10.16--Form of Indemnification Agreement between
Anheuser-Busch, Incorporated and certain Executive
Officers of the Company.*
Exhibit 12 --Ratio of Earnings to Fixed Charges.
Exhibit 13 --Pages 26 through 59 of the Anheuser-Busch Companies,
Inc. 2002 Annual Report to Shareholders, a copy of
which is furnished for the information of the
Securities and Exchange Commission. Portions of
the Annual Report not incorporated herein by
reference are not deemed "filed" with the
Commission.
Exhibit 21 --Subsidiaries of the Company
Exhibit 23 --Consent of Independent Accountants, filed as part
of page F-1 of this report.
<FN>
- --------
*A management contract or compensatory plan or arrangement required to be filed
by Item 15(c) of this report.
</TABLE>
(b) Reports on Form 8-K
There were no reports on Form 8-K filed during the fourth quarter of 2002.
13
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
ANHEUSER-BUSCH COMPANIES, INC.
---------------------------------------
(Registrant)
By /s/ PATRICK T. STOKES
-------------------------------------
Patrick T. Stokes
President and Chief Executive Officer
Date: March 26, 2003
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<C> <S> <C>
/s/ PATRICK T. STOKES President and Chief Executive March 26, 2003
------------------------------------------------ Officer and Director
(Patrick T. Stokes) (Principal Executive Officer)
/s/ W. RANDOLPH BAKER Vice President and Chief March 26, 2003
------------------------------------------------ Financial Officer (Principal
(W. Randolph Baker) Financial Officer)
/s/ JOHN F. KELLY Vice President and Controller March 26, 2003
------------------------------------------------ (Principal Accounting Officer)
(John F. Kelly)
/s/ AUGUST A. BUSCH III Director March 26, 2003
------------------------------------------------
(August A. Busch III)
/s/ BERNARD A. EDISON Director March 26, 2003
------------------------------------------------
(Bernard A. Edison)
/s/ CARLOS FERNANDEZ G. Director March 26, 2003
------------------------------------------------
(Carlos Fernandez G.)
/s/ JOHN E. JACOB Director March 26, 2003
------------------------------------------------
(John E. Jacob)
/s/ JAMES R. JONES Director March 26, 2003
------------------------------------------------
(James R. Jones)
Director March 26, 2003
------------------------------------------------
(Charles F. Knight)
/s/ VERNON R. LOUCKS, JR. Director March 26, 2003
------------------------------------------------
(Vernon R. Loucks, Jr.)
14
<PAGE>
<PAGE>
/s/ VILMA S. MARTINEZ Director March 26, 2003
------------------------------------------------
(Vilma S. Martinez)
/s/ WILLIAM PORTER PAYNE Director March 26, 2003
------------------------------------------------
(William Porter Payne)
/s/ JOYCE M. ROCHE Director March 26, 2003
------------------------------------------------
(Joyce M. Roche)
/s/ HENRY HUGH SHELTON Director March 26, 2003
------------------------------------------------
(Henry Hugh Shelton)
/s/ ANDREW C. TAYLOR Director March 26, 2003
------------------------------------------------
(Andrew C. Taylor)
/s/ DOUGLAS A. WARNER III Director March 26, 2003
------------------------------------------------
(Douglas A. Warner III)
/s/ EDWARD E. WHITACRE, JR. Director March 26, 2003
------------------------------------------------
(Edward E. Whitacre, Jr.)
</TABLE>
CERTIFICATIONS
I, Patrick T. Stokes, certify that:
1. I have reviewed this annual report on Form 10-K of Anheuser-Busch
Companies, Inc.;
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this annual
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this annual report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-14 and 15d-14) for the registrant and have:
a) designed such disclosure controls and procedures to ensure that material
information relating to the registrant, including its consolidated subsidiaries,
is made known to us by others within those entities, particularly during the
period in which this annual report is being prepared;
b) evaluated the effectiveness of the registrant's disclosure controls and
procedures as of a date within 90 days prior to the filing date of this annual
report (the "Evaluation Date"); and
c) presented in this annual report our conclusions about the effectiveness
of the disclosure controls and procedures based on our evaluation as of the
Evaluation Date;
15
<PAGE>
<PAGE>
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit committee
of registrant's board of directors (or persons performing the equivalent
functions):
a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
b) any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal controls; and
6. The registrant's other certifying officer and I have indicated in this
annual report whether there were significant changes in internal controls or in
other factors that could significantly affect internal controls subsequent to
the date of our most recent evaluation, including any corrective actions with
regard to significant deficiencies and material weaknesses.
Date: 3-13-03 /s/ PATRICK T. STOKES
------------------------------------------------
Patrick T. Stokes
President and Chief Executive Officer
I, W. Randolph Baker, certify that:
1. I have reviewed this annual report on Form 10-K of Anheuser-Busch
Companies, Inc.;
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this annual
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this annual report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-14 and 15d-14) for the registrant and have:
a) designed such disclosure controls and procedures to ensure that material
information relating to the registrant, including its consolidated subsidiaries,
is made known to us by others within those entities, particularly during the
period in which this annual report is being prepared;
b) evaluated the effectiveness of the registrant's disclosure controls and
procedures as of a date within 90 days prior to the filing date of this annual
report (the "Evaluation Date"); and
c) presented in this annual report our conclusions about the effectiveness
of the disclosure controls and procedures based on our evaluation as of the
Evaluation Date;
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit committee
of registrant's board of directors (or persons performing the equivalent
functions):
a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
b) any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal controls; and
16
<PAGE>
<PAGE>
6. The registrant's other certifying officer and I have indicated in this
annual report whether there were significant changes in internal controls or in
other factors that could significantly affect internal controls subsequent to
the date of our most recent evaluation, including any corrective actions with
regard to significant deficiencies and material weaknesses.
Date: 3-12-03 /s/ W. RANDOLPH BAKER
------------------------------------------------
W. Randolph Baker
Vice President and Chief Financial Officer
17
<PAGE>
<PAGE>
ANHEUSER-BUSCH COMPANIES, INC.
INDEX TO FINANCIAL STATEMENT SCHEDULE
PAGE
----
Report of Independent Accountants on Financial Statement Schedule... F-1
Consent of Independent Accountants.................................. F-1
Financial Statement Schedule for the Years 2002, 2001 and 2000:
Valuation and Qualifying Accounts and Reserves (Schedule II)...... F-2
All other Financial Statement Schedules are omitted because they are not
applicable or the required information is shown in the Consolidated Financial
Statements and Notes.
Separate financial statements of subsidiaries not consolidated have been
omitted because, in the aggregate, the Company's proportionate share of
investees' profit before income taxes is less than 20% of Anheuser-Busch's
consolidated pretax income, and Anheuser-Busch's investments in such companies
are less than 20% of consolidated total assets.
18
<PAGE>
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS ON FINANCIAL STATEMENT SCHEDULE
To the Board of Directors
of Anheuser-Busch Companies, Inc.
Our audits of the consolidated financial statements referred to in our report
dated February 3, 2003 appearing in the 2002 Annual Report to Shareholders of
Anheuser-Busch Companies, Inc. (which report and consolidated financial
statements are incorporated by reference in this Annual Report on Form 10-K)
also included an audit of the financial statement schedule listed in Item
15(a)(2) of this Form 10-K. In our opinion, the financial statement schedule
presents fairly, in all material respects, the information set forth therein
when read in conjunction with the related consolidated financial statements.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
St. Louis, Missouri
February 3, 2003
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statements on Forms S-3 (No. 333-64996 and No. 333-96635) and in the
Registration Statements on Forms S-8 (No. 33-36132, No. 33-39714, No.
33-39715, No. 33-46846, No. 33-53333, No. 33-58221, No. 33-58241,
No. 333-67027, No. 333-71309, No. 333-71311, No. 333-88015, No. 333-50058,
and No. 333-60216) of Anheuser-Busch Companies, Inc. of our report dated
February 3, 2003 relating to the consolidated financial statements, which
appears in the Annual Report to Shareholders, which is incorporated in this
Annual Report on Form 10-K. We also consent to the incorporation by
reference of our report dated February 3, 2003 relating to the financial
statement schedule, which appears on page F-1 of this Form 10-K.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
St. Louis, Missouri
March 26, 2003
F-1
<PAGE>
<PAGE>
<TABLE>
ANHEUSER-BUSCH COMPANIES, INC.
SCHEDULE II--VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
(IN MILLIONS)
<CAPTION>
2002 2001 2000
---- ------ ------
<S> <C> <C> <C>
Reserve for doubtful accounts (deducted from related assets):
Balance at beginning of period........................... $ 7.7 $ 8.2 $ 6.4
Additions charged to costs and expenses.................. (1.3) .9 1.8
Additions (recoveries of uncollectible accounts
previously written off)................................ .2 .1 .1
Deductions (uncollectible accounts written off).......... (1.0) (1.5) (.1)
------ ------ ------
Balance at end of period................................. $ 5.6 $ 7.7 $ 8.2
====== ====== ======
Deferred income tax asset valuation allowance under FAS 109:
Balance at beginning of period........................... $ 12.0 $ 14.7 $ 13.6
Additions to valuation allowance charged to costs and
expenses............................................... 7.7 3.6 9.7
Deductions from valuation allowance (utilizations and
expirations)........................................... (8.8) (6.3) (8.6)
------ ------ ------
Balance at end of period................................. $ 10.9 $ 12.0 $ 14.7
====== ====== ======
</TABLE>
F-2
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-3.2
<SEQUENCE>3
<FILENAME>exh3p2.txt
<DESCRIPTION>BY-LAWS OF THE COMPANY
<TEXT>
<PAGE>
Exhibit 3.2
BY-LAWS
OF
ANHEUSER-BUSCH COMPANIES, INC.
(AS AMENDED AND RESTATED APRIL 24, 2002)
INCORPORATED UNDER THE LAWS OF DELAWARE
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<TABLE>
TABLE OF CONTENTS
BY-LAWS
OF
ANHEUSER-BUSCH COMPANIES, INC.
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Page Page
<S> <C> <C> <C>
ARTICLE I: Section 4:3 Executive Committee -
LOCATION AND OFFICES Notice of Meetings............... 9
Section 4:4 Executive Committee -
Section 1:1 Principal Office................ 1 Quorum and Powers
Section 1:2 Other Offices................... 1 of Majority...................... 9
Section 4:5 Executive Committee -
ARTICLE II: Reporting........................ 9
STOCKHOLDERS Section 4:6 Other Committees.................... 10
Section 2:1 Annual Meeting.................. 1 ARTICLE V:
Section 2:2 Business to be Conducted OFFICERS
at Annual Meeting............ 1
Section 2:3 Special Meetings................ 2 Section 5:1 Appointment......................... 10
Section 2:4 Place of Meetings............... 2 Section 5:2 Tenure.............................. 10
Section 2:5 Notice of Meetings.............. 2 Section 5:3 Salaries............................ 10
Section 2:6 Quorum and Voting............... 3 Section 5:4 Chief Executive Officer............. 10
Section 2:7 Voting; Proxy................... 3 Section 5:5 Chairman of the Board............... 11
Section 2:8 Voting by Fiduciaries, Section 5:6 President........................... 11
Pledgee and Pledgors.......... 3 Section 5:7 Other Officers...................... 11
Section 2:9 Nomination of Directors......... 4
Section 2:10 List of Stockholders............ 5 ARTICLE VI:
Section 2:11 Appointment of Inspectors CAPITAL STOCK AND DIVIDENDS
of Election and Resolution
of Questions Concerning Section 6:1 Certificates for Shares............. 11
Right to Vote................ 5 Section 6:2 Stock Records....................... 11
Section 6:3 Transfers........................... 12
ARTICLE III: Section 6:4 Regulations Governing Issuance
DIRECTORS and Transfers of Shares.......... 12
Section 6:5 Transfer Agents and
Section 3:1 General Powers.................. 6 Registrars....................... 12
Section 3:2 Number and Qualifications....... 6 Section 6:6 Lost or Destroyed
Section 3:3 Election........................ 6 Certificates..................... 12
Section 3:4 Place of Meetings............... 6 Section 6:7 Fractions of Shares................. 12
Section 3:5 Regular Meetings................ 7 Section 6:8 Determination of
Section 3:6 Special Meetings................ 7 Stockholders..................... 13
Section 3:7 Quorum.......................... 7 Section 6:9 Record Date......................... 13
Section 3:8 Waiver of Notice................ 8
Section 3:9 Consent......................... 8 ARTICLE VII:
Section 3:10 Notice to Members of the MISCELLANEOUS
Board of Directors........... 8
Section 3:11 Presiding Officer............... 8 Section 7:1 Voting Shares in Other
Corporations..................... 13
Section 7:2 Execution of Other Papers
ARTICLE IV: and Documents.................... 13
COMMITTEES Section 7:3 Corporate Seal...................... 14
Section 7:4 Amendments.......................... 14
Section 4:1 Executive Committee - Section 7:5 Books and Records................... 14
Appointment and Tenure....... 8
Section 4:2 Executive Committee -
Powers....................... 9
</TABLE>
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BY-LAWS
OF
ANHEUSER-BUSCH COMPANIES, INC.
(AS AMENDED AND RESTATED APRIL 24, 2002)
ARTICLE I: LOCATION AND OFFICES
PRINCIPAL OFFICE.
SECTION 1:1. The principal office of the corporation shall be at
such place as the Board of Directors may from time to time determine,
but until a change is effected such principal office shall be at One
Busch Place, in the City of St. Louis, Missouri.
OTHER OFFICES.
SECTION 1:2. The corporation may also have other offices, in such
places (within or without the State of Delaware) as the Board of
Directors may from time to time determine.
ARTICLE II: STOCKHOLDERS
ANNUAL MEETING.
SECTION 2:1. An annual meeting of the stockholders of the
corporation shall be held at 10:00 o'clock a.m. on the fourth Wednesday
in April of each year if not a legal holiday, and if a legal holiday
then on the next succeeding day not a legal holiday. The purpose of the
meeting shall be to elect directors and to transact such other business
as properly may be brought before the meeting. If the corporation shall
fail to hold said meeting for the election of directors on the date
aforesaid, the Board of Directors shall cause the election to be held
by the stockholders as soon thereafter as convenient.
BUSINESS TO BE CONDUCTED AT ANNUAL MEETING.
SECTION 2:2.1 At an annual meeting of stockholders, only such
business shall be conducted as shall have been brought before the
meeting (i) pursuant to the corporation's notice of the meeting, (ii)
by or at the direction of the Board of Directors (or any duly organized
committee thereof), or (iii) by any stockholder of the corporation who
is a stockholder of record on the date of giving of the notice provided
for in this By-Law and on the record date for the determination of
stockholders entitled to vote at such meeting and who has complied with
the notice procedures set forth in this By-Law.
SECTION 2:2.2 In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a
stockholder, such stockholder must have given timely notice in proper
written form to the Secretary which notice is not withdrawn by such
stockholder at or prior to such annual meeting.
SECTION 2:2.3 To be timely, a stockholder's notice to the Secretary
must be delivered or mailed to and received by the Secretary at the
principal executive offices of the corporation, not less than ninety
days nor more than one hundred twenty days prior to the first
anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the meeting is changed by more than
thirty days from such anniversary date, notice by the stockholder must
be received not later than the close of business on the tenth day
following the earlier of the day on which notice of the date of the
annual meeting was mailed or public disclosure was made.
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SECTION 2:2.4 To be in proper written form, such stockholder's
notice must set forth as to each matter the stockholder proposes to
bring before the annual meeting (i) a brief description of the business
to be brought before the annual meeting and the reasons for conducting
such business at such meeting; (ii) the name and address, as they
appear on the corporation's books, of the stockholder proposing such
business, and the name and address of the beneficial owner, if any, on
whose behalf the proposal is made; (iii) the class and the number of
shares of the corporation's stock which are beneficially owned by the
stockholder, and the beneficial owner, if any, on whose behalf the
proposal is made; (iv) any material interest of the stockholder, and of
the beneficial owner, if any, on whose behalf the proposal is made, in
such business; and (v) a representation that such stockholder intends
to appear in person or by proxy at the annual meeting to bring such
business before the meeting.
SECTION 2:2.5 Notwithstanding anything in these By-Laws to the
contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this By-Law. The chairman
of the meeting may, if the facts warrant, determine that the business
was not properly brought before the meeting in accordance with the
provisions of this By-Law; and if the chairman should so determine, the
chairman shall so declare to the meeting, and any such business not
properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this By-Law, a stockholder
shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations thereunder with respect to the matters set forth in
this By-Law.
SPECIAL MEETINGS.
SECTION 2:3. At any time the Chief Executive Officer may, and
either the Chief Executive Officer or the Secretary at the written
request of any five members of the Board of Directors shall, issue a
call for a special meeting of the stockholders. Such request shall
state the purpose or purposes of the proposed meeting, and at such
special meeting only such matters as may be specified in the call
therefor shall be considered.
PLACE OF MEETINGS.
SECTION 2:4. All meetings of the stockholders shall be held at the
principal office of the corporation, or at such other place, within or
without the State of Delaware, as may be determined by the Board of
Directors and stated in the notice of the meeting.
NOTICE OF MEETINGS.
SECTION 2:5. Written notice of each meeting of the stockholders
stating the place, date, and hour of the meeting, and, in case of a
special meeting or where otherwise required by statute, the purpose or
purposes for which the meeting is called, shall be delivered by mail
not less than ten nor more than sixty days before the date of the
meeting, by or at the direction of the person calling the meeting, to
each stockholder entitled to vote at such meeting. The notice of a
stockholders' meeting shall be deemed to be delivered when deposited in
the United States mail with postage prepaid, addressed to each
stockholder at such stockholder's address as it appears on the records
of the corporation.
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QUORUM AND VOTING.
SECTION 2:6.1 The holders of a majority of the outstanding shares
(exclusive of treasury stock) entitled to vote at any meeting of the
stockholders, when present in person or by proxy, shall constitute a
quorum for the transaction of business, except as otherwise provided by
statute, the Certificate of Incorporation, or these By-Laws; but in the
absence of such a quorum the holders of a majority of the shares
represented at the meeting shall have the right successively to adjourn
the meeting to a specified date. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting the corporation may
transact any business which might have been transacted at the original
meeting. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
SECTION 2:6.2 The absence from any meeting of the number of shares
required by statute, the Certificate of Incorporation or these By-Laws
for action upon one matter shall not prevent action at such meeting
upon any other matter or matters which may properly come before the
meeting, if the number of shares required in respect of such other
matters shall be present.
SECTION 2:6.3 When a quorum is present at any meeting of the
stockholders, the vote of the holders (present in person or represented
by proxy) of a majority of the shares of stock which are actually voted
(and have the power to vote) on any proposition or question properly
brought to a vote at such meeting shall decide any such proposition or
question, unless the proposition or question is one upon which by
express provision of statute or of the Certificate of Incorporation, or
of these By-Laws, a different vote is required, in which case such
express provision shall govern and establish the number of votes
required to determine such proposition or question.
VOTING; PROXY.
SECTION 2:7.1 Whenever the law requires or the chairman orders that
a vote be taken by ballot, each stockholder entitled to vote on a
particular question at a meeting of stockholders, pursuant to law or
the Certificate of Incorporation, shall be entitled to one vote for
each share of voting stock held by such stockholder. The date for
determining the stockholders entitled to vote at a meeting of the
stockholders shall be determined pursuant to Section 6:9.
SECTION 2:7.2 Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent in writing without a
meeting may authorize another person or persons to act for such
stockholder by proxy; but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a longer
period. A duly executed proxy shall be irrevocable if it states that it
is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A proxy may
be made irrevocable regardless of whether the interest with which it is
coupled is an interest in the stock itself or an interest in the
corporation generally.
VOTING BY FIDUCIARIES, PLEDGEE AND PLEDGORS.
SECTION 2:8. Persons holding stock in a fiduciary capacity shall be
entitled to vote the shares so held. Persons whose stock is pledged
shall be entitled to vote, unless in the transfer by the pledgor on the
books of the corporation the pledgor has expressly empowered the
pledgee to vote thereon, in which case only the pledgee or the
pledgee's proxy may represent such stock and vote thereon.
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If shares or other securities having voting power stand of record
in the names of two or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by the entirety
or otherwise, or if two or more persons have the same fiduciary
relationship respecting the same shares, unless the Secretary is given
written notice to the contrary and is furnished with a copy of the
instrument or order appointing them or creating the relationship
wherein it is so provided, their acts with respect to voting shall have
the following effect:
(a) If only one votes, that person's act binds all;
(b) If more than one vote, the act of the majority so voting binds all;
(c) If more than one vote, but the vote is evenly split on any
particular matter, each faction may vote the securities in question
proportionally, or any person voting the shares, or a beneficiary, if any,
may apply to the Court of Chancery or such other court as may have
jurisdiction to appoint an additional person to act with the persons so
voting the shares, which shall then be voted as determined by a majority of
such persons and the person appointed by the Court. If the instrument so
filed shows that any such tenancy is held in unequal interest, a majority or
even-split for the purpose of this subsection shall be a majority or
even-split in interest.
NOMINATION OF DIRECTORS.
SECTION 2:9.1 Only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors of the
corporation, except as may be otherwise provided in the Certificate of
Incorporation of the corporation with respect to the right of holders
of preferred stock of the corporation to nominate and elect a specified
number of directors in certain circumstances. Nominations of persons
for election to the Board of Directors may be made at any annual
meeting of stockholders, or at any special meeting of stockholders
called for the purpose of electing directors, (i) by or at the
direction of the Board of Directors (or any duly authorized committee
thereof) or (ii) by any stockholder of the corporation who is a
stockholder of record on the date of the giving of the notice provided
for in this By-Law and on the record date for the determination of
stockholders entitled to vote at such meeting and who complies with the
notice procedures set forth in this By-Law.
SECTION 2:9.2 In addition to any other applicable requirements, for
a nomination to be made by a stockholder, such stockholder must have
given timely notice thereof in proper written form to the Secretary of
the corporation.
SECTION 2:9.3 To be timely, a stockholder's notice to the Secretary
must be delivered or mailed to and received by the Secretary at the
principal executive offices of the corporation (i) in the case of an
annual meeting, not less than ninety days nor more than one hundred
twenty days prior to the anniversary date of the immediately preceding
annual meeting of stockholders; provided, however, that in the event
that the annual meeting is called for a date that is not within thirty
days before or after such anniversary date, notice by the stockholder
in order to be timely must be so received not later than the close of
business on the tenth day following the day on which such notice of the
date of the annual meeting was mailed or such public disclosure of the
date of the annual meeting was made, whichever occurs first, and (ii)
in the case of a special meeting of stockholders called for the purpose
of electing directors, not later than the close of business on the
tenth day following the day on which notice of the date of the special
meeting was mailed or public disclosure of the date of the special
meeting was made, whichever occurs first.
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SECTION 2:9.4 To be in proper written form, a stockholder's notice
to the Secretary must set forth (i) as to each person whom the
stockholder proposes to nominate for election as a director (A) the
name, age, business address and residence address of the person, (B)
the principal occupation or employment of the person, (C) the class or
series and the number of shares of capital stock of the corporation
which are owned beneficially or of record by the person and (D) any
other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act, and the rules and
regulations promulgated thereunder; and (ii) as to the stockholder
giving the notice or the beneficial owner on whose behalf the
nomination is made, (A) the name and address of such stockholder as
they appear on the corporation's books, (B) the class or series and the
number of shares of capital stock of the corporation beneficially owned
by such stockholder or beneficial owner, (C) a description of all
arrangements or understandings between such stockholder or beneficial
owner and each proposed nominee and any other person or persons
(including their names) pursuant to which the nomination(s) are to be
made by such stockholder or beneficial owner, (D) a representation that
such stockholder or beneficial owner intends to appear in person or by
proxy at the meeting to nominate the persons named in its notice and
(E) any other information relating to such stockholder or beneficial
owner that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of
proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder. Such
notice must be accompanied by a written consent of each proposed
nominee to being named as a nominee and to serve as a director if
elected.
SECTION 2:9.5 No person shall be eligible for election as a
director of the corporation, at any annual meeting of stockholders or
at any special meeting of stockholders called for the purpose of
electing directors, unless nominated in accordance with the procedures
set forth in this By-Law. If the chairman of the meeting determines
that a nomination was not made in accordance with the foregoing
procedures, the chairman shall declare to the meeting that the
nomination was defective and such defective nomination shall be
disregarded.
LIST OF STOCKHOLDERS.
SECTION 2:10. The Secretary shall prepare and make, or cause to be
made, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at said meeting,
arranged in alphabetical order, showing the address of and the number
of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at
least ten days prior to the election, either at a place within the city
where the election is to be held and which place shall be specified in
the notice of the meeting, or, if not so specified, at the place where
said meeting is to be held, and the list shall be produced and kept at
the time and place of election during the whole time thereof and
subject to the inspection of any stockholder who may be present. The
stock ledger shall be the only evidence as to who are the stockholders
entitled to examine the stock ledger, the list required by this By-Law
or the books of the corporation, or to vote in person or by proxy at
any meeting of the stockholders.
APPOINTMENT OF INSPECTORS OF ELECTION AND RESOLUTION OF QUESTIONS CONCERNING
RIGHT TO VOTE.
SECTION 2:11. The Board of Directors, in advance of the meeting of
stockholders or, if it does not act, the chairman of the meeting, shall
appoint not less than two persons who are not directors to serve as
inspectors of election. It shall be their duty to receive and canvass
the votes for election of directors and on any proposal voted on by
ballot and to certify the results to the chairman. In all cases where
the right to vote upon any share of the corporation shall be
questioned, it shall be the duty of the inspectors to examine the stock
ledger of the corporation as evidence of the shares held, and all
shares that appear
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standing thereon in the name of any person or persons may be voted upon by
such person or persons. Each inspector of election before entering upon the
duties of such office shall take and subscribe the following oath before an
officer authorized by law to administer oaths: "I do solemnly swear that I
will execute the duties of an inspector of the election now to be held with
strict impartiality and according to the best of my ability."
ARTICLE III: DIRECTORS
GENERAL POWERS.
SECTION 3:1. The Board of Directors shall control and manage the
business and property of the corporation. The Board may exercise all
such powers of the corporation and do all lawful acts and things as are
not by law, the Certificate of Incorporation, or these By-Laws directed
or required to be exercised or done by the stockholders or some
particular officer of the corporation.
NUMBER AND QUALIFICATIONS.
SECTION 3:2. The number of directors shall be determined from time
to time by resolution of the Board of Directors in accordance with the
terms of Article FIFTH of the Certificate of Incorporation. From and
after the first public distribution of the Common Stock of the
corporation, each director shall be a stockholder of the corporation,
except in such specific case or cases as shall be otherwise authorized
by the Board of Directors upon a showing of reasonable cause therefor.
ELECTION.
SECTION 3:3. The directors who are to be elected at the annual
meeting of the stockholders shall be elected by ballot by the holders
of shares entitled to vote.
PLACE OF MEETINGS.
SECTION 3:4. The place where meetings of the Board of Directors are
held shall be as follows:
(a) The annual meeting shall be held in the city of the principal
office of the corporation in Missouri, provided that in the event the
annual meeting of shareholders is held in a metropolitan area other than
St. Louis, Missouri, the annual meeting of the Board of Directors shall
be held in the metropolitan area where the annual meeting of
stockholders is held.
(b) Regular meetings shall be held at such place within the City or
County of St. Louis, Missouri as may be prescribed in the call, provided
that any regular meeting may be held elsewhere, either within or without
the State of Delaware, pursuant to resolution of the Board of Directors
or pursuant to the call of the Chief Executive Officer acting with the
consent of a majority of the directors.
(c) Special meetings shall be held at such place as may be
prescribed in the notice, provided that if a special meeting is held on
less than three days' notice, it shall be held at the principal office
of the corporation unless all directors agree upon a different location.
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(d) Members of the Board of Directors may participate in a meeting
of the Board by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
hear each other, and participating in the meeting in this manner shall
constitute presence in person at such meeting.
REGULAR MEETINGS.
SECTION 3:5. Regular meetings shall be held at such place or
places, on such date or dates, and at such times as shall be
established by the Board of Directors. A notice of each regular meeting
shall not be required, except any meeting at which an amendment to or
repeal of these By-Laws is to be considered.
SPECIAL MEETINGS.
SECTION 3:6. Special meetings of the Board of Directors may be held
at the call of the Chief Executive Officer or five members of the Board
at such time as may be prescribed in the call of the meeting. The
purpose of the special meeting need not be stated in the notice of the
meeting. Notice of a special meeting may be given by any one or more of
the following methods and the method used need not be the same for each
director being notified:
(a) Written notice sent by mail at least three days prior to
the meeting;
(b) Personal service at least twenty-four (24) hours prior to the
date of the meeting;
(c) Telegraphic notice at least twenty-four (24) hours prior to the
date of the meeting, said notice to be sent as a straight full-rate
telegram;
(d) Telephonic notice at least twenty-four (24) hours prior to the
date of the meeting.
(e) Facsimile transmission at least twenty-four (24) hours prior to
the date of the meeting.
QUORUM.
SECTION 3:7. A majority of the persons serving as directors of the
corporation at the time of a meeting of the Board of Directors shall
constitute a quorum for the transaction of any business by the Board at
such meeting. At any meeting of the Board, no action shall be taken
(except adjournment, in the manner provided below) until after a quorum
has been established.
The act of a majority of directors who are present at a meeting at
which a quorum previously has been established (or at any adjournment
of such meeting, provided that a quorum previously shall have been
established at such adjourned meeting) shall be the act of the Board of
Directors, regardless of whether or not a quorum is present at the time
such action is taken. In determining the number of directors who are
present at the time any such action is taken (for the purpose of
establishing the number of votes required to take action on any
proposition or question submitted to the Board), any director who is in
attendance at such meeting but who, for just cause, is disqualified to
vote on such proposition or question, shall not be considered as being
present at the time of such action.
In the event a quorum cannot be established at the beginning of a
meeting, a majority of the directors present at the meeting, or the
director, if there be only one person, or the Secretary of the
corporation, if there be no director present, may adjourn the meeting
from time to time until a quorum be present. Only such notice of such
adjournment need be given as the Board may from time to time prescribe.
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WAIVER OF NOTICE.
SECTION 3:8. Any notice which is required by law or by the
Certificate of Incorporation or by these By-Laws to be given to any
director may be waived in writing, signed by such director, whether
before or after the time stated therein. Attendance of a director at
any meeting shall constitute waiver of notice of such meeting, except
where a director attends a meeting for the express purpose of objecting
to the transaction of any business because the meeting is not lawfully
called or convened.
CONSENT.
SECTION 3:9. Any action required or permitted to be taken at any
meeting of the Board of Directors (or of any committee thereof) may be
taken without a meeting if all members of the Board (or committee)
consent thereto in writing, and the writing or writings are filed with
the minutes of the proceedings of the Board (or committee).
NOTICE TO MEMBERS OF THE BOARD OF DIRECTORS.
SECTION 3:10. Each member of the Board of Directors shall file with
the Secretary of the corporation an address to which mail or
telegraphic notices shall be sent and a telephone number to which a
telephonic or facsimile notice may be transmitted. A notice mailed,
telegraphed, telephoned or transmitted by facsimile in accordance with
the instructions provided by the director shall be deemed sufficient
notice. Such address or telephone number may be changed at any time and
from time to time by a director by giving written notice of such change
to the Secretary. Failure on the part of any director to keep an
address and telephone number on file with the Secretary shall
automatically constitute a waiver of notice of any regular or special
meeting of the Board which might be held during the period of time that
such address and telephone number are not on file with the Secretary. A
notice shall be deemed to be mailed when deposited in the United States
mail, postage prepaid. A notice shall be deemed to be telegraphed when
the notice is delivered to the transmitter of the telegram and either
payment or provision for payment is made by the corporation. Notice
shall be deemed to be given by telephone if the notice is transmitted
over the telephone to some person (whether or not such person is the
director) answering the telephone at the number which the director has
placed on file with the Secretary. Notice shall be deemed to be given
by facsimile transmission when sent to the telephone number which the
director has placed on file with the Secretary.
PRESIDING OFFICER.
SECTION 3:11. The Chairman of the Board shall preside at all
meetings of the Board of Directors at which the Chairman is present. In
the Chairman's absence, the Vice Chairman (if any) shall preside. In
the absence of the Chairman and the Vice Chairman, the Board shall
select a chairman of the meeting from among the directors present.
ARTICLE IV: COMMITTEES
EXECUTIVE COMMITTEE--APPOINTMENT AND TENURE.
SECTION 4:1. The Board of Directors, by resolution adopted by a
majority of the whole Board, may designate three or more directors,
including the Chief Executive Officer, to constitute an Executive
Committee, provided that a majority of said committee shall at all
times be made up of members of the Board who are neither officers nor
employees of the corporation and who shall serve at the pleasure of the
Board. In the case of the death, resignation or removal of any member
of the Executive Committee or
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in case any such member shall cease to be a member of the Board, the vacancy
shall be filled by the Board. The Board shall designate the chairman of the
Executive Committee.
EXECUTIVE COMMITTEE--POWERS.
SECTION 4:2. The Executive Committee, to the extent provided in the
resolution of the Board of Directors appointing such committee or in
any subsequent resolution, shall have and may exercise all the powers
and authority of the Board in the management of the business and
affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it, but shall
not have the power or authority with respect to amending the
Certificate of Incorporation, adopting an agreement of merger or
consolidation, or recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and
assets; nor shall the Executive Committee have the power or authority
to declare a dividend or to authorize the issuance of stock; but the
designation of such Executive Committee and the delegation of authority
thereto shall not operate to relieve the Board, or any member thereof,
of any responsibility imposed upon it or them by the provisions of the
Delaware General Corporation Law, as amended.
EXECUTIVE COMMITTEE--NOTICE OF MEETINGS.
SECTION 4:3. A meeting of the Executive Committee may be held on
call by the Chief Executive Officer or on the call of any three of the
other members of the Committee. Meetings of the Executive Committee may
be held, upon notice as short as twenty-four (24) hours, at such place
or places as shall be determined by resolution of the Committee, or in
the absence of a resolution of the Executive Committee with respect
thereto, at such place or places as may be determined by the Chief
Executive Officer. If notice is given at least three days prior to the
meeting of the Committee, notice may be given in any of the ways set
forth in Section 3:6, dealing with special meetings of the Board of
Directors. If less than three days' notice is given, notice shall not
be given by mail but shall be given by one of the other methods
described in Section 3:6. With respect to any such notice, all the
provisions of Section 3:10 shall be equally applicable in the case of
notice of an Executive Committee meeting as they are in the case of a
notice of a meeting of the Board of Directors. Meetings of the
Executive Committee shall be held at such place either within or
without the States of Missouri or Delaware as may be designated by a
resolution of the Board; or in the absence of such resolution, at such
place within the metropolitan St. Louis, Missouri area as may be
designated in the notice. Any such notice may be waived in the same
manner provided in Section 3:8 with respect to waiver of notice of a
directors' meeting.
EXECUTIVE COMMITTEE--QUORUM AND POWERS OF MAJORITY.
SECTION 4:4. A majority of the members of the Executive Committee
shall constitute a quorum for the transaction of business at any
meeting of the Executive Committee. Unless otherwise provided by the
Board of Directors, a majority of the members of the Executive
Committee shall constitute a quorum, and the acts of a majority of the
members present at a meeting at which a quorum is present shall be the
acts of the Executive Committee.
EXECUTIVE COMMITTEE--REPORTING.
SECTION 4:5. At each regular meeting of the Board of Directors all
actions taken by the Executive Committee since the last prior meeting
of the Board shall be reported, and the Board shall take such action to
approve or rescind such action of the Executive Committee as the Board
may deem appropriate, but no rescission of such action shall affect any
rights which have attached pursuant to such Executive Committee action.
9
<PAGE>
<PAGE>
If no regular meeting of the Board is scheduled within seven days
after the date of a meeting of the Executive Committee, then no later
than five days after such meeting of the Executive Committee, the
minutes thereof (even though they may not as yet have been approved by
the Executive Committee) shall be deposited in the mail by the
Secretary addressed to each member of the Board at the address on file
with the Secretary pursuant to the provisions of Section 3:10, provided
that if any member of the Board shall have failed to place an address
on file with the Secretary, such member shall be deemed to have waived
the right to receive a copy of the minutes of the Executive Committee
meeting.
OTHER COMMITTEES.
SECTION 4.6. Other Committees may be established, and their members
appointed, from time to time by the Board of Directors. Such other
committees shall have such purpose(s) and such power(s) as the Board by
resolution may confer. Unless otherwise provided by the Board, a
majority of the members of such other Committee shall constitute a
quorum, and the acts of a majority of the members present at a meeting
at which a quorum is present shall be the act of such other Committee.
ARTICLE V: OFFICERS
APPOINTMENT.
SECTION 5:1. The Board of Directors shall appoint from its
membership a Chairman of the Board and a President. The Board shall
appoint such number of Vice Presidents as the Board may from time to
time determine, a Controller, a Secretary, a Treasurer, one or more
Assistant Controllers, one or more Assistant Secretaries, one or more
Assistant Treasurers and such other officers, as the Board may from
time to time deem necessary or appropriate. The Board of Directors may
appoint a Vice Chairman of the Board, but the person holding that
position shall not be considered an officer of the corporation.
TENURE.
SECTION 5:2. Officers appointed by the Board of Directors shall
hold their respective offices for the term of one year and until their
respective successors shall have been duly appointed and qualified;
provided, however, that any officer appointed by the Board may be
removed by the Board with or without a hearing and with or without
cause whenever in its judgment the best interests of the corporation
will be served thereby.
SALARIES.
SECTION 5:3. The salaries of all officers of the corporation shall
be fixed by the Board of Directors.
CHIEF EXECUTIVE OFFICER.
SECTION 5:4. So long as the offices of Chairman of the Board and
President are held by the same person, that person shall be the Chief
Executive Officer of the corporation. Otherwise, the Chief Executive
Officer shall be the Chairman of the Board or the President, as
designated by the Board of Directors. The Chief Executive Officer shall
have general supervision and control over all the business and property
of the corporation and shall be responsible at all times to the Board
of Directors and the Executive Committee. The Chief Executive Officer
shall also preside at all meetings of the stockholders. In the event
the Chief Executive Officer shall fail or for any reason be unable to
serve as such, the Board of Directors shall promptly act to fill such
vacancy.
10
<PAGE>
<PAGE>
CHAIRMAN OF THE BOARD.
SECTION 5:5. The Chairman of the Board shall preside as chairman of
all meetings of the Board of Directors at which the Chairman shall be
present and shall have such other powers, responsibilities and duties
as shall be assigned by the Board.
PRESIDENT.
SECTION 5:6. The President shall have such powers, responsibilities
and duties as shall be assigned by the Board of Directors.
OTHER OFFICERS.
SECTION 5:7. Subject to the ultimate authority of the Board of
Directors, all other officers of the corporation shall have such
powers, responsibilities and duties as shall be assigned to them from
time to time by the Chief Executive Officer.
ARTICLE VI: CAPITAL STOCK AND DIVIDENDS
CERTIFICATES FOR SHARES.
SECTION 6:1. Certificates for shares of the capital stock of the
Company shall be in such form, not inconsistent with the Certificate of
Incorporation, as shall be approved by the Board of Directors, and
shall be signed by the Chairman or Vice Chairman of the Board of
Directors or by the President or a Vice-President, and by the Secretary
or an Assistant Secretary, or the Treasurer or an Assistant Treasurer,
provided that the signatures of any such officers thereon may be
facsimiles. The seal of the corporation shall be impressed, by original
or by facsimile, printed or engraved, on all such certificates. The
certificate shall also be signed by the transfer agent and a registrar
and the signature of either the transfer agent or the registrar may
also be facsimile, engraved or printed. In case any officer, transfer
agent, or registrar who has signed or whose facsimile signature has
been placed upon any such certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued,
such certificate may nevertheless be issued by the corporation with the
same effect as if such officer, transfer agent, or registrar had not
ceased to be such officer, transfer agent, or registrar at the date of
its issue.
STOCK RECORDS.
SECTION 6:2. The corporation shall keep at its principal office
stock books in which shall be recorded the number of shares issued, the
names of the owners of the shares, the number owned by them
respectively, and the transfer of such shares with the date of
transfer.
11
<PAGE>
<PAGE>
TRANSFERS.
SECTION 6:3. Certificates representing shares of stock of the
corporation shall be transferable only on the books of the corporation
by the person or persons named in the certificate or by the attorney
lawfully constituted in writing representing such person or persons and
upon surrender of the certificate or certificates being transferred
which certificate shall be properly endorsed for transfer or
accompanied by a duly executed stock power. Whenever a certificate is
endorsed by or accompanied by a stock power executed by someone other
than the person or persons named in the certificate, evidence of
authority to transfer shall also be submitted with the certificate. All
certificates surrendered to the corporation for transfer shall be
cancelled.
REGULATIONS GOVERNING ISSUANCE AND TRANSFERS OF SHARES.
SECTION 6:4. The Board of Directors shall have the power and
authority to make all such rules and regulations as it shall deem
expedient concerning the issue, transfer and registration of
certificates for shares of stock of the corporation.
TRANSFER AGENTS AND REGISTRARS.
SECTION 6:5. Transfer agents and registrars for the corporation's
stock shall be banks, trust companies or other financial institutions
located within or without the State of Delaware as shall be appointed
by the Board of Directors. The Board shall also define the authority of
such transfer agents and registrars.
LOST OR DESTROYED CERTIFICATES.
SECTION 6:6. Where a certificate for shares of the corporation has
been lost or destroyed, the Board of Directors may authorize the
issuance of a new certificate in lieu thereof upon satisfactory proof
of such loss or destruction, and upon the giving of an open penalty
bond with surety satisfactory to the corporation's General Counsel and
Treasurer, to protect the corporation or any person injured by the
issuance of the new certificate from any liability or expense which it
or they may incur by reason of the original certificate's remaining
outstanding, and upon payment of the corporation's reasonable costs
incident thereto.
FRACTIONS OF SHARES.
SECTION 6:7. The corporation shall not issue fractions of a share.
It shall, however, (1) arrange for the disposition of fractional
interests by those entitled thereto, and (2) pay in cash the fair value
of fractions of a share as of the time when those entitled to receive
such fractions are determined, or (3) issue scrip or warrants in
registered or bearer form which shall entitle the holder to receive a
certificate for a full share upon the surrender of such scrip or
warrants aggregating a full share. Scrip or warrants shall not, unless
otherwise provided therein, entitle the holder to exercise voting
rights, to receive dividends thereon, or to participate in any of the
assets of the corporation in the event of liquidation. The Board of
Directors may cause scrip or warrants to be issued subject to the
conditions that the shares for which scrip or warrants are exchangeable
may be sold by the corporation and the proceeds thereof distributed to
the holders of scrip or warrants, or subject to any other conditions
which the Board may impose.
12
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<PAGE>
DETERMINATION OF STOCKHOLDERS.
SECTION 6:8. The corporation shall be entitled to treat the holder
of record of any share or shares of stock as the holder in fact
thereof, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof,
save as expressly provided by the laws of the State of Delaware.
RECORD DATE.
SECTION 6:9. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent in
writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment or any rights, or entitled
to exercise any rights in respect of any change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall not be more
than sixty nor less than ten days before the date of such meeting, nor
more than sixty days prior to any other action. If no record date is
fixed:
(1) The record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be
at the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close
of business on the day next preceding the day on which the
meeting is held.
(2) The record date for determining stockholders for any
other purpose shall be at the close of business on the day on
which the Board adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board may fix a new record
date for the adjourned meeting.
ARTICLE VII: MISCELLANEOUS
VOTING SHARES IN OTHER CORPORATIONS.
SECTION 7:1. The corporation may vote any and all shares of stock
and other securities having voting rights which may at any time and
from time to time be held by it in any other corporation or
corporations and such vote may be cast either in person or by proxy by
such officer of the corporation as the Board of Directors may appoint
or, in default of such appointment, the Chief Executive Officer, the
President or a Vice President.
EXECUTION OF OTHER PAPERS AND DOCUMENTS.
SECTION 7:2. All checks, bills, notes, drafts, vouchers, warehouse
receipts, bonds, mortgages, contracts, registration certificates and
all other papers and documents of the corporation shall be signed or
endorsed for the corporation by such of its officers, other employees
and agents as the Board of Directors may from time to time determine,
or in the absence of such determination, by the Chief Executive
Officer, the President or a Vice President, provided that instruments
requiring execution with the formality of deeds shall be signed by the
Chief Executive Officer, the President or a Vice President and
impressed with the Seal of the corporation, duly attested by the
Secretary or an Assistant Secretary.
13
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<PAGE>
CORPORATE SEAL.
SECTION 7:3. The Board of Directors shall provide a suitable seal,
containing the name of the corporation, which seal shall be in the
custody of the Secretary of the corporation, and may provide for one or
more duplicates thereof to be kept in the custody of such other officer
of the corporation as the Board may prescribe.
AMENDMENTS.
SECTION 7:4. These By-Laws may be amended or repealed, or new
By-Laws may be adopted (a) by the affirmative vote of a majority of the
shares issued and outstanding and entitled to vote at any annual or
special meeting of stockholders, or (b) by the affirmative vote of the
majority of the Board of Directors at any regular or special meeting;
provided that the notice of such meeting of stockholders or directors,
whether regular or special, shall specify as one of the purposes
thereof the making of such amendment or repeal, and provided further
that any amendment of the By-Laws made by the Board may be further
amended or repealed by the stockholders.
BOOKS AND RECORDS.
SECTION 7:5. Except as the Board of Directors may from time to time
direct or as may be required by law, the corporation shall keep its
books and records at its principal office.
14
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4.4
<SEQUENCE>4
<FILENAME>exh4p4.txt
<DESCRIPTION>INDENTURE DATED 7-1-2001
<TEXT>
<PAGE>
Exhibit 4.4
===============================================================================
ANHEUSER-BUSCH COMPANIES, INC.
TO
THE CHASE MANHATTAN BANK
TRUSTEE
------------------------------------------------------
INDENTURE
DATED AS OF JULY 1, 2001
------------------------------------------------------
DEBT SECURITIES
===============================================================================
<PAGE>
<PAGE>
<TABLE>
CROSS REFERENCE SHEET
BETWEEN
THE INDENTURE
AND
THE TRUST INDENTURE ACT OF 1939
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
--------------------------- -----------------
<S> <C>
Section 310 (a)(1).............................................................. 609
(a)(2).............................................................. 609
(a)(3).............................................................. Not Applicable
(a)(4).............................................................. Not Applicable
(a)(5).............................................................. 609
(b)................................................................. 608, 610
(c)................................................................. Not Applicable
Section 311 (a)................................................................. Not Applicable
(b)................................................................. Not Applicable
(c)................................................................. Not Applicable
Section 312 (a)................................................................. 701, 702(a)
(b)................................................................. 702(b)
(c)................................................................. 702(c)
Section 313 (a)................................................................. 703(a)
(b)................................................................. Not Applicable
(c)................................................................. 703(a), 703(b)
(d)................................................................. 703(b)
Section 314 (a)................................................................. 704, 1104
(b)................................................................. Not Applicable
(c)(1).............................................................. 102
(c)(2).............................................................. 102
(c)(3).............................................................. Not Applicable
(d)................................................................. Not Applicable
(e)................................................................. 102
(f)................................................................. Not Applicable
Section 315 (a)................................................................. 601(a)
(b)................................................................. 602, 703
(c)................................................................. 601(b)
(d)................................................................. 601(c)
(d)(1).............................................................. 601(a)
(d)(2).............................................................. 601(c)(2)
(d)(3).............................................................. 601(c)(3)
(e)................................................................. 514
Section 316 (a)(1)(A)........................................................... 502, 512
(a)(1)(B)........................................................... 513
(a)(2).............................................................. Not Applicable
(b)................................................................. 508
(c)................................................................. 104(e)
Section 317 (a)(1).............................................................. 503
(a)(2).............................................................. 504
(b)................................................................. 1003
Section 318 (a)................................................................. 107
NOTE: This cross reference sheet shall not, for any purpose, be deemed to be a part of the Indenture.
</TABLE>
<PAGE>
<PAGE>
<TABLE>
TABLE OF CONTENTS
<S> <C>
ARTICLE ONE--DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..............................................1
Section 101. Definitions......................................................................................1
Section 102. Compliance Certificates and Opinions.............................................................8
Section 103. Form of Documents Delivered to Trustee...........................................................9
Section 104. Acts of Holders..................................................................................9
Section 105. Notices, etc., to Trustee and Company...........................................................10
Section 106. Notices to Holders; Waiver......................................................................10
Section 107. Conflict with Trust Indenture Act...............................................................11
Section 108. Effect of Headings and Table of Contents........................................................11
Section 109. Successors and Assigns..........................................................................11
Section 110. Separability Clause.............................................................................11
Section 111. Benefits of Indenture...........................................................................11
Section 112. Governing Law...................................................................................11
Section 113. Legal Holidays..................................................................................11
Section 114. Act of Holders when Securities are Denominated in Different Currencies..........................12
Section 115. Monies of Different Currencies to be Segregated.................................................12
Section 116. Payment to be in Proper Currency................................................................12
ARTICLE TWO--SECURITY FORMS......................................................................................12
Section 201. Forms Generally.................................................................................12
Section 202. Form of Face of Security........................................................................13
Section 203. Form of Trustee's Certificate of Authentication.................................................15
Section 204. Form of Reverse of Security.....................................................................15
ARTICLE THREE--THE SECURITIES....................................................................................18
Section 301. Title and Terms.................................................................................18
Section 302. Denominations...................................................................................19
Section 303. Execution, Authentication, Delivery and Dating..................................................19
Section 304. Temporary Securities............................................................................21
Section 305. Global Securities...............................................................................21
Section 306. Registration, Registration of Transfer and Exchange.............................................23
Section 307. Mutilated, Destroyed, Lost and Stolen Securities................................................24
Section 308. Payment of Interest; Interest Rights Preserved..................................................25
Section 309. Persons Deemed Owners...........................................................................26
Section 310. Cancellation....................................................................................26
ARTICLE FOUR--SATISFACTION AND DISCHARGE.........................................................................26
Section 401. Satisfaction and Discharge of Indenture.........................................................26
Section 402. Application of Trust Money......................................................................27
ARTICLE FIVE--REMEDIES...........................................................................................27
Section 501. Events of Default...............................................................................27
Section 502. Acceleration of Maturity; Rescission and Annulment..............................................28
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.................................29
Section 504. Trustee May File Proofs of Claim................................................................30
Section 505. Trustee May Enforce Claims Without Possession of Securities.....................................31
Section 506. Application of Money Collected..................................................................31
Section 507. Limitation on Suits.............................................................................32
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.......................32
Section 509. Restoration of Rights and Remedies..............................................................33
Section 510. Rights and Remedies Cumulative..................................................................33
ii
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<PAGE>
Section 511. Delay or Omission Not Waiver....................................................................33
Section 512. Control by Holders..............................................................................33
Section 513. Waiver of Past Defaults.........................................................................33
Section 514. Undertaking for Costs...........................................................................34
Section 515. Waiver of Stay or Extension Laws................................................................34
Section 516. Exemption from Individual Liability.............................................................34
ARTICLE SIX--THE TRUSTEE.........................................................................................35
Section 601. Certain Duties and Responsibilities.............................................................35
Section 602. Notice of Defaults..............................................................................36
Section 603. Certain Rights of Trustee.......................................................................36
Section 604. Not Responsible for Recitals or Issuance of Securities..........................................37
Section 605. May Hold Securities.............................................................................37
Section 606. Money Held in Trust.............................................................................37
Section 607. Compensation and Reimbursement..................................................................37
Section 608. Disqualification; Conflicting Interests.........................................................38
Section 609. Corporate Trustee Required; Eligibility.........................................................38
Section 610. Resignation and Removal; Appointment of Successor...............................................38
Section 611. Acceptance of Appointment by Successor..........................................................39
Section 612. Merger, Conversion, Consolidation or Succession to Business.....................................40
ARTICLE SEVEN--HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.................................................41
Section 701. Company to Furnish Trustee Names and Addresses of Holders.......................................41
Section 702. Preservation Of Information; Communications to Holders..........................................41
Section 703. Reports by Trustee..............................................................................42
Section 704. Reports by Company..............................................................................42
ARTICLE EIGHT--CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER.....................................................43
Section 801. Company May Consolidate, etc., only on Certain Terms............................................43
Section 802. Successor Corporation Substituted...............................................................43
Section 803. Evidence to be Furnished Trustee................................................................44
ARTICLE NINE--SUPPLEMENTAL INDENTURES............................................................................44
Section 901. Supplemental Indentures without Consent of Holders..............................................44
Section 902. Supplemental Indentures with Consent of Holders.................................................45
Section 903. Execution of Supplemental Indentures............................................................45
Section 904. Effect of Supplemental Indentures...............................................................46
Section 905. Conformity with Trust Indenture Act.............................................................46
Section 906. Reference in Securities to Supplemental Indentures..............................................46
ARTICLE TEN--COVENANTS...........................................................................................46
Section 1001. Payment of Principal, Premium and Interest.....................................................46
Section 1002. Maintenance of Office or Agency................................................................46
Section 1003. Money for Security Payments to be Held in Trust; Appointment of Paying Agent...................47
Section 1004. Statement as to Default........................................................................48
Section 1005. Corporate Existence............................................................................48
Section 1006. Limitation upon Liens..........................................................................48
Section 1007. Sale-Leaseback Transactions Relating to Principal Plants.......................................50
Section 1008. Limitation Upon Funded Debt of Restricted Subsidiaries.........................................52
Section 1009. Maintenance of Insurance.......................................................................52
Section 1010. Waiver of Certain Covenants....................................................................52
ARTICLE ELEVEN--REDEMPTION OF SECURITIES.........................................................................53
Section 1101. Right of Redemption............................................................................53
iii
<PAGE>
<PAGE>
Section 1102. Applicability of Article.......................................................................53
Section 1103. Election to Redeem; Notice to Trustee..........................................................53
Section 1104. Selection by Trustee of Securities to be Redeemed..............................................53
Section 1105. Notice of Redemption...........................................................................54
Section 1106. Deposit of Redemption Price....................................................................54
Section 1107. Securities Payable on Redemption Date..........................................................54
Section 1108. Securities Redeemed in Part....................................................................55
ARTICLE TWELVE--SINKING FUND.....................................................................................55
Section 1201. Sinking Fund Payments..........................................................................55
Section 1202. Satisfaction of Sinking Fund Payments with Securities..........................................55
Section 1203. Redemption of Securities for Sinking Fund......................................................56
ARTICLE THIRTEEN--DEFEASANCE AND COVENANT DEFEASANCE.............................................................56
Section 1301. Defeasance.....................................................................................56
Section 1302. Covenant Defeasance............................................................................56
Section 1303. Conditions to Defeasance or Covenant Defeasance................................................57
Section 1304. Application of Funds...........................................................................58
Section 1305. Reinstatement..................................................................................58
</TABLE>
iv
<PAGE>
<PAGE>
THIS INDENTURE, dated as of July 1, 2001, is between ANHEUSER-BUSCH
COMPANIES, INC., a Delaware corporation (hereinafter called the "Company")
having its principal office at One Busch Place, St. Louis, Missouri 63118,
and THE CHASE MANHATTAN BANK, a New York corporation (hereinafter 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
notes, debentures or other evidences of indebtedness (collectively, the
"Securities"), to be issued from time to time in one or more series (a
"Series") as provided in this Indenture and as shall be provided, in respect
of any Series, in or pursuant to the Authorizing Resolution hereinafter
referred to and in the indenture supplemental hereto (if any) relating to
such Series.
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 from time to time by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities, as follows:
ARTICLE ONE--DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles; and
(4) the words "herein," "hereof," "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act" when used with respect to any Holder has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"applicants" has the meaning specified in Section 702.
1
<PAGE>
<PAGE>
"Authenticating Agent" means the Trustee or other Person designated by
the Company from time to time, on written notice to the Trustee, to
authenticate and deliver Securities of one or more Series pursuant to
Section 303.
"Authorizing Resolution" means a Board Resolution providing for the
issuance of a Series of Securities, which is to be delivered to the Trustee
pursuant to Section 303 hereof.
"Board of Directors" means either the board of directors of the
Company, or any duly authorized committee of that board or any officer
authorized to act for the board of directors.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the city in which
the Corporate Trust Office is located are authorized or obligated by law or
executive order to be closed.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or if at any time after
the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman or Vice
Chairman of the Board of Directors, the President, a Vice President (any
reference to a Vice President of the Company herein to be deemed also to
include any Vice President of the Company designated by a number or a word
or words added before or after such title) or the Treasurer of the Company,
and also by an Assistant Treasurer, the Controller, an Assistant Controller,
the Secretary or an Assistant Secretary, and delivered to the Trustee and to
the Authenticating Agent, if any, in respect of the Series to which the
Company Order shall relate.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Indenture is
located at 450 West 33rd Street, New York, New York 10001, Attention:
Corporate Trust Department, 15th Floor.
"Covenant Defeasance" has the meaning specified in Section 1302.
"Default" means any event which is, or after notice or lapse of time or
both, would become an Event of Default.
"Defaulted Interest" has the meaning specified in Section 308.
"Defeasance" has the meaning specified in Section 1301.
"Depositary" means, with respect to any 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
2
<PAGE>
<PAGE>
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 or include the Depositary with respect to the Global Securities
of that Series.
"Extendible Securities" means Securities of any Series issued hereunder
the final maturity of which is extendible for a stated period of time, as
shall be provided in, or pursuant to, the Authorizing Resolution and
supplemental indenture (if any) relating to such Series.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Funded Debt" means (A) all indebtedness for money borrowed, including
purchase money indebtedness, having a maturity of more than twelve months
from the date as of which the amount thereof is to be determined or having a
maturity of less than twelve months but by its terms being renewable or
extendible beyond twelve months from such date at the option of the
borrower, subject only to conditions which the borrower is then capable of
fulfilling, and direct guarantees of such indebtedness for money borrowed of
other Persons; or (B) indebtedness classified as "long-term indebtedness" in
the financial statements of the borrower most recently filed with the
Commission pursuant to the Exchange Act; provided, that Funded Debt shall
not include:
(i) Any indebtedness of a Person, evidence of which is held in
treasury by such Person; or
(ii) Any indebtedness with respect to which there shall have been
deposited with a depository (or set aside and segregated by the obligor
if permitted by the instrument creating such indebtedness), in trust,
on or prior to maturity, funds sufficient to pay such indebtedness; or
(iii) Any amount representing capitalized lease obligations; or
(iv) Any indirect guarantees or other contingent obligations in
respect of indebtedness of other Persons, including agreements,
contingent or otherwise, with such other Persons or with third persons
with respect to, or to permit or assure the payment of, obligations of
such other Persons, including, without limitation, agreements to
purchase or repurchase obligations of such other Persons, agreements to
advance or supply funds to or to invest in such other Persons, or
agreements to pay for property, products or services of such other
Persons (whether or not conveyed, delivered or rendered), and any
through-put, take-or-pay, keep-well, make-whole or maintenance of
working capital or earnings or similar agreements; or
(v) Any guarantees with respect to lease or other similar periodic
payments to be made by other Persons.
"Global Security" means a registered Security evidencing all or part of
a Series of Securities, issued to the Depositary for such Series in
accordance with Section 305, and bearing the legend prescribed in Section
305.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
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"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof and shall include the forms and terms of particular Series of
Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest-bearing
Securities, interest payable after Maturity.
"Interest Payment Date" means, for any Series or Issue of Securities
issued and outstanding hereunder, the date or dates in each year on which
any interest on such Series is paid or made available for payment.
"Issue" means, (i) with respect to any Series, Securities of such
Series having the same Original Issue Date, the same Maturity Date and the
same interest rate and other payment terms, except as to amount of principal
or (ii) any Securities that the Company designates by one or more
Authorizing Resolutions or indentures supplemental hereto as constituting
all or part of an Issue.
"Maturity" when used with respect to any Security means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Maturity Date" means the date specified in each Security on which the
principal thereof is due and payable in full.
"Net Tangible Assets" means the total assets of the Company and its
Restricted Subsidiaries (including, without limitation, any net investment
in Unrestricted Subsidiaries) after deducting therefrom (a) all current
liabilities (excluding any thereof constituting Funded Debt) and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense, organization and developmental expenses and other like segregated
intangibles, all as computed by the Company and its Restricted Subsidiaries
in accordance with generally accepted accounting principles as of a date
within 90 days of the date as of which the determination is being made;
provided, that any items constituting deferred income taxes, deferred
investment tax credit or other similar items shall not be taken into account
as a liability or as a deduction from or adjustment to total assets.
"Officers' Certificate" means a certificate signed by the Chairman or
Vice Chairman of the Board, or the President, a Vice President (any
reference to a Vice President of the Company to be deemed also to include
any Vice President of the Company designated by a number or a word or words
added before or after such title) or the Treasurer of the Company, and also
by an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or of counsel to the Company or other
counsel, and who shall be acceptable to the Trustee. Each such opinion shall
include the statements provided for in Section 102, if and to the extent
required by the provisions thereof.
"Original Issue Date" means the date on which a Security is issued to
the original purchaser thereof, as specified in such Security.
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"Original Issue Discount Securities" means Securities which provide 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, or Securities of
any particular Series or Issue, means, as of the date of determination, all
such Securities theretofore authenticated and delivered under this
Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities, provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture;
provided, however, that in determining whether the Holders of the
requisite principal amount of such Securities Outstanding have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder (a) the principal amount of an Original Issue Discount Security
that shall be deemed to be Outstanding for such purposes shall be the amount
that would be due and payable as of the date of determination upon a
declaration of acceleration thereof pursuant to Section 502 and (b)
Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which
the Trustee knows to be so owned shall be so disregarded. 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 such other obligor.
"Packaging Business" means the assets identified as the "Packaging
Segment" (or similar terminology generally describing the same operations)
in the financial statements most recently delivered by the Company to the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act, and
any assets substantially related to such assets that are acquired after the
date of such financial statements.
"Packaging Business Divestitures" means (i) the distribution (in the
form of a dividend) to stockholders of the Company of the capital stock of a
Subsidiary or Subsidiaries, substantially all of the assets of which consist
of all or any portion of the Packaging Business or (ii) the transfer of the
capital stock of a Subsidiary or Subsidiaries, substantially all of the
assets of which consist of all or any portion of the Packaging Business, or
the transfer of all or any portion of the Packaging Business, the
consideration for such transfer (including the liabilities assumed related
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thereto) being not less than the fair market value (as reasonably determined
by the Company) of such stock or assets.
"Paying Agent" means, with respect to any Series of Securities, any
Person authorized by the Company to pay the principal of (and premium, if
any) or interest on any such 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 the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 307 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as
the lost, destroyed or stolen Security.
"Principal Plant" means (i) any brewery, or any manufacturing,
processing or packaging plant, now owned or hereafter acquired by the
Company or any Subsidiary and located within the United States (but not
including any (a) brewery or plant of the Company or any Subsidiary which
the Company has determined, by Board Resolution, is not of material
importance to the total business conducted by the Company and its
Subsidiaries or (b) any plant that the Company shall have determined, by
Board Resolution, is used primarily for transportation, marketing or
warehousing or (c) at the option of the Company, any plant that (A) does not
constitute part of the brewing operations of the Company and its
Subsidiaries and (B) has a net book value, as reflected on the balance sheet
contained in the Company's financial statements most recently filed by the
Company with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act, of not more than $100,000,000), and (ii) any other facility
owned by the Company or any of its Subsidiaries that the Company shall, by
Board Resolution, designate as a Principal Plant. Following any
determination, designation or election referred to herein that a brewery or
plant shall not be included as a Principal Plant, the Company may, at its
option, by Board Resolution, elect that such facility subsequently be
included as a Principal Plant.
"Redeemable Securities" means Securities of any Series or Issue which
may be redeemed, at the option of the Company, prior to the Stated Maturity
thereof, on the terms specified in or pursuant to the Authorizing Resolution
relating to such Series or Issue and in accordance with Article Eleven
herein.
"Redemption Date" when used with respect to any Security of any Series
or Issue to be redeemed means the date fixed for such redemption by or
pursuant to the provisions of such Security, this Indenture and the
Authorizing Resolution and supplemental indenture (if any) relating to such
Security.
"Redemption Price" when used with respect to any Security of any Series
or Issue to be redeemed means the price at which it is to be redeemed
pursuant to the provisions of such Security, this Indenture and the
Authorizing Resolution and supplemental indenture (if any) relating to such
Security.
"Regular Record Date" means, for the interest payable on any Interest
Payment Date in respect of any Series or Issue of Securities, except as
provided in, or pursuant to, the Authorizing
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Resolution and supplemental indenture (if any) relating thereto, the
fifteenth day (whether or not a Business Day) of the calendar month next
preceding the month during which such Interest Payment Date occurs.
"Required Currency" has the meaning specified in Section 116.
"Responsible Officer" when used with respect to the Trustee or an
Authenticating Agent means the Chairman or Vice Chairman of the Board of
Directors, the Chairman or Vice Chairman of the Executive Committee of the
Board of Directors, the President, any Vice President (whether or not
designated by a number or a word or words added before or after the title
"Vice President"), the Secretary, any Assistant Secretary, the Treasurer,
any Assistant Treasurer, the Cashier, any Assistant Cashier, any Senior
Trust Officer or Trust Officer, the Controller and any Assistant Controller
or any other officer of the Trustee or such Authenticating Agent customarily
performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means (i) any Subsidiary which owns or operates
a Principal Plant, except any Subsidiary incorporated, or the principal
place of business of which is located, outside the present fifty states of
the United States of America and the District of Columbia and (ii) any other
Subsidiary which the Company shall elect, by Board Resolution, to be treated
as a Restricted Subsidiary, until such time as the Company may, by Board
Resolution, elect that such Subsidiary shall no longer be a Restricted
Subsidiary, successive such elections being permitted without restriction.
"Securities" means the securities of the Company to be issued from time
to time hereunder.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 306.
"Series" means, with respect to Securities issued hereunder, the
Securities issued pursuant to any particular Authorizing Resolution, subject
to the right of the Board of Directors to specify in such Authorizing
Resolution that such Securities shall constitute more than one Series, and
subject to the right of the Board of Directors to specify in one or more
Authorizing Resolutions that the Securities issued pursuant to such
Authorizing Resolutions shall constitute one Series.
"Sinking Fund" means, with respect to any Sinking Fund Securities, a
sinking fund provided for in Article Twelve.
"Sinking Fund Securities" means Securities of any Series or Issue which
are required to be redeemed from time to time prior to the Stated Maturity
thereof in whole or in part under a Sinking Fund, on the terms specified in
the Authorizing Resolution relating to such Series or Issue and in
accordance with Article Twelve herein.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 308.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon means the date specified in such Security as
the fixed date on which the principal of such Security or such installment
of interest is due and payable.
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"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect more than 50% of the board of directors of
such corporation (irrespective of whether at the time capital stock of any
other class or classes of such corporation shall or might have voting power
upon the occurrence of any contingency), (b) the interest in the capital or
profits of such limited liability company, partnership or joint venture or
(c) the beneficial interest in such trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or
more of its other subsidiaries or by one or more such Person's other
subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean and include the Person, or 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.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and as in force at the date as of which this instrument was
executed, except as provided in Section 905.
"Unrestricted Subsidiary" means any Subsidiary which is not a
Restricted Subsidiary.
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the timely payment of which
its full faith and credit is pledged, (y) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America, the timely payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of the
issuer thereof or (z) interests in funds consisting solely of such
securities described in (x) and (y), including funds managed by the Trustee
or its Affiliates (including such funds for which it or its affiliates
receive fees in connection with such management).
"Yield to Maturity" means, with respect to any Series or Issue of
Securities, the yield to maturity thereof, calculated at the time of
issuance thereof, or, if applicable, at the most recent redetermination of
interest thereon, and calculated in accordance with accepted financial
practice.
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 an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as
to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than
certificates provided pursuant to Section 1004) shall include:
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(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate
or opinion of, or representations by, an officer or officers of the Company,
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver, vote or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee, and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient and in accordance with such reasonable rules as the
Trustee may determine.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind 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 or
suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
(e) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to
be taken pursuant to this Indenture. If a record date is fixed, those
Persons who were Securityholders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to give such
consent or to revoke any consent previously given or take any such action,
whether or not such Persons continue to be Holders after such record date.
No such consent shall be valid or effective for more than 120 days after
such record date.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Except as provided in Section 501, any request, demand, authorization,
direction, notice, consent, or waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given or furnished
to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (except as provided in Section 501 (4)), if
in writing and mailed, first class postage prepaid, to the Company, to
the attention of the Secretary, and a copy thereof to the attention of
the Treasurer, addressed to it at the address of the principal office
of the Company specified in the first paragraph of this instrument or
at such other address as shall have been furnished in writing to the
Trustee by the Company for this purpose.
SECTION 106. NOTICES TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears on the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of such
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notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision which is required or deemed to be included in this Indenture by
any of the provisions of TIA, such provision so required or deemed to be
included herein shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders of Securities, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture shall be construed in accordance with and governed by
the laws of the State of New York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, any Redemption Date, or
the Stated Maturity of any Security, or any date on which any Defaulted
Interest is proposed to be paid, shall not be a Business Day, then
(notwithstanding any other provision of this Indenture) 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 with the same force and effect as
if made on the Interest Payment Date or Redemption Date, at the Stated
Maturity, or on the date on which the Defaulted Interest is proposed to be
paid, and no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity or date for the
payment of Defaulted Interest, as the case may be.
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SECTION 114. ACT OF HOLDERS WHEN SECURITIES ARE DENOMINATED IN DIFFERENT
CURRENCIES.
Whenever any action or Act is to be taken hereunder by the Holders of
two or more Series or Issues of Securities denominated in different
currencies, then, for the purposes of determining the principal amount of
Securities held by such Holders, the aggregate principal amount of the
Securities denominated in a currency other than United States dollars shall
be deemed to be that amount of United States dollars that could be obtained
for such principal amount on the basis of the spot rate of exchange for such
currency as determined by the Company or by an authorized exchange rate
agent and evidenced to the Trustee by an Officers' Certificate as of the
date the taking of such action or Act by the Holders of the requisite
percentage in principal amount of the Securities is evidenced to the
Trustee. An exchange rate agent may be authorized in advance or from time to
time by the Company, and may be the Trustee or its Affiliate. Any such
determination by the Company or by any such exchange rate agent shall be
conclusive and binding on all Holders and the Trustee, and neither the
Company nor such exchange rate agent shall be liable therefor in the absence
of bad faith.
SECTION 115. MONIES OF DIFFERENT CURRENCIES TO BE SEGREGATED.
The Trustee shall segregate monies, funds, and accounts held by the
Trustee hereunder in one currency from any monies, funds or accounts in any
other currencies, notwithstanding any provision herein which would otherwise
permit the Trustee to commingle such amounts.
SECTION 116. PAYMENT TO BE IN PROPER CURRENCY.
Each reference in any Security, or in the Authorizing Resolution
relating thereto, to any currency shall be of the essence. In the case of
any Security denominated in any currency (the "Required Currency") other
than United States dollars, except as otherwise provided therein or in the
related Authorizing Resolution, the obligation of the Company to make any
payment of principal, premium or interest thereon shall not be discharged or
satisfied by any tender by the Company, or recovery by the Trustee, in any
currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the Trustee timely holding the full
amount of the Required Currency then due and payable. If any such tender or
recovery is in a currency other than the Required Currency, the Trustee may
take such actions as it considers appropriate to exchange such currency for
the Required Currency. The costs and risks of any such exchange, including
without limitation the risks of delay and exchange rate fluctuation, shall
be borne by the Company, the Company shall remain fully liable for any
shortfall or delinquency in the full amount of Required Currency then due
and payable, and in no circumstances shall the Trustee be liable therefor.
The Company hereby waives any defense of payment based upon any such tender
or recovery which is not in the Required Currency, or which, when exchanged
for the Required Currency by the Trustee, is less than the full amount of
Required Currency then due and payable.
ARTICLE TWO--SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities of each Series and Issue and the certificate of
authentication thereon shall be in substantially the forms set forth in this
Article or in such other forms, including the form of one or more Global
Securities, as shall be specified in, or pursuant to, the Authorizing
Resolution or in the indenture supplemental hereto (if any) relating to such
Series or Issue, with such
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appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or the said Authorizing Resolution
or supplemental indenture, and they may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange, or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
The definitive Securities of each Series shall be printed, lithographed
or engraved or produced by any combination of these methods on steel
engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, or,
if they shall not be listed on any securities exchange, in any other manner
consistent herewith, all as shall be determined by the officers executing
such Securities, as evidenced by their execution of such Securities.
SECTION 202. FORM OF FACE OF SECURITY.
[The following is to be included if the Security is an Original Issue
Discount Security:]
[FOR PURPOSES OF SECTION 1273 OF THE UNITED STATES INTERNAL REVENUE
CODE OF 1986, AS AMENDED, THE ISSUE PRICE OF THIS SECURITY IS __% OF
ITS PRINCIPAL AMOUNT AND ITS ISSUE DATE IS __________, 20__.]
ANHEUSER-BUSCH COMPANIES, INC.
[title of Security]
Rate of Interest Maturity Date Original Issue Date
---------------- ------------- -------------------
............ No.............
ANHEUSER-BUSCH COMPANIES, INC., a Delaware corporation (hereinafter
called the "Company", which term includes any successor Person under
the Indenture hereinafter referred to), for value received, hereby
promises to pay to __________________, or registered assigns, the sum
of ___________ on the Maturity Date shown above, and to pay interest
thereon, at the annual rate of interest shown above, from the Original
Issue Date shown above or from the most recent Interest Payment Date
(as hereinafter defined) to which interest has been paid or duly
provided for, payable semi-annually on _______________ and
______________ of each year and at maturity (an "Interest Payment
Date"), commencing on the first such date after the Original Issue
Date, except that if the Original Issue Date is on or after a Regular
Record Date (which term, as well as all other capitalized terms used
herein, shall have the meanings assigned in the Indenture referred to
on the reverse hereof unless otherwise indicated) but before the next
Interest Payment Date, interest payments will commence on the second
Interest Payment Date following the Original Issue Date.
[reference to currency[ies] of payment and currency exchange
arrangements, if applicable]
The interest payable hereon, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in said Indenture,
be paid to the Person in whose name this [name of Security] (or one or
more Predecessor [name of Series]) is registered at the close of
business on the Regular Record Date for such interest, which shall be
the fifteenth day of the
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calendar month (whether or not a Business Day) next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the registered
Holder on such Regular Record Date, and, together with any interest on
such interest, may be paid to the Person in whose name this [name of
Security] (or one or more Predecessor [name of Series]) is registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of [name of Series] not less than 10 days
prior to such Special Record Date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the [name of Series] may be listed, and
upon such notice as may be required by such exchange, all as more fully
provided in such Indenture. Payment of the principal of (and premium,
if any) and interest on this [name of Security] will be made at the
office or agency of the Company maintained for that purpose in [The
Borough of Manhattan, The City of New York or other place of payment],
in [reference to United States dollars or other currency of payment];
provided, however, that payment of interest, other than interest due on
a Maturity Date, may be made at the option of the Company by check
mailed to the address of the Person entitled thereto as such address
shall appear on the Security Register. [Include the following, if
applicable:] Payments on the Maturity Date will be made in immediately
available funds against presentment of this [name of Security].
This [name of Security] is one of a duly authorized issue of [name
of Securities] of the Company designated as its [title of Series]
(herein called the "[name of Series]"), issued and to be issued under
an indenture dated as of July 1, 2001 (herein called the "Indenture"),
between the Company and The Chase Manhattan Bank, as Trustee (herein
called the "Trustee", which term includes any successor trustee under
the Indenture), and under [reference to Authorizing Resolution and/or
supplemental indenture relating to the Series] to which Indenture,
[reference to Authorizing Resolution and/or supplemental indenture] and
all [further] indentures supplemental thereto reference is hereby made
for the definition of certain terms used herein, for a statement of the
respective rights thereunder of the Company, the Trustee and the
Holders of the [name of Series], and for the terms upon which the [name
of Series] are, and are to be, authenticated and delivered. This [name
of Series] is one of a series of securities issued or to be issued by
the Company under the Indenture, limited in aggregate principal amount
to ____________, subject to any subsequent issuances that may be
authorized by subsequent Authorizing Resolutions or supplemental
indentures. The Indenture provides that the Securities of the Company
referred to therein ("Securities"), including the [name of Series], may
be issued in one or more Series, each of which may consist of one or
more Issues, which different Series and Issues may be issued in such
principal amounts and on such terms (including, but not limited to,
terms relating to interest rate or rates, provisions for determining
such interest rate or rates and adjustments thereto, maturity,
redemption (optional and mandatory), sinking fund, covenants and Events
of Default) as may be provided in or pursuant to the Authorizing
Resolutions (as defined in the Indenture) relating to the several
Series.
Reference is hereby made to the further provisions of this [name of
Security] set forth on the reverse hereof which further provisions
shall for all purposes have the same effect as if set forth at this
place.
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Unless the certificate of authentication hereon has been executed
by The Chase Manhattan Bank, the Trustee under the Indenture, or its
successor thereunder, or by another Authenticating Agent appointed
pursuant to the Indenture, by the manual signature of one of its
authorized officers, this [name of Security] shall not be entitled to
any benefit under the Indenture, nor be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, The Company has caused this instrument to be
duly executed under its corporate seal.
Dated ANHEUSER-BUSCH COMPANIES, INC.
Attest:
By By:
[Assistant] Secretary [title of Company Officer]
SECTION 203. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the [name of Series] referred to in the within-mentioned
Indenture.
The Chase Manhattan Bank,
as Trustee
By
[reference to Authenticating Agent, if any] Authorized Officer
SECTION 204. FORM OF REVERSE OF SECURITY.
[The following to be included if the Securities are not redeemable
prior to maturity.]
This [name of Security] may not be redeemed prior to its Maturity
Date.
[The following paragraph, or other appropriate redemption provisions,
to be included if the Securities are Redeemable Securities:]
The [name of Series] are subject to redemption upon not less than
30 nor more than 60 days' notice by mail, [the following clause to be
included if there is a Sinking Fund:] [(1) on [annual Sinking Fund
Redemption Date] in each year commencing with the year [year of first
Sinking Fund payment] through operation of the Sinking Fund at a
Redemption Price equal to their principal amount and (2)] [at any time]
in whole or in part, at the election of the Company at a Redemption
Price equal to the percentage set forth below of the principal amount
to be redeemed for the respective twelve-month periods beginning [ ]
of the years indicated:
[Schedule of Redemption Prices]
and thereafter at 100% of the principal amount thereof, together in
each case with accrued interest to the Redemption Date.
[The following paragraph, or other appropriate Sinking Fund
provision, to be included if there is a Sinking Fund for the Series:]
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The Sinking Fund provides for the redemption on [first Sinking Fund
Redemption Date] and on [annual Sinking Fund Redemption Date] in each
year thereafter through [year of final Sinking Fund date] of not less
than [minimum required Sinking Fund redemption amount] principal amount
nor more than [maximum permitted Sinking Fund redemption amount]
principal amount of [name of Series]. [name of Series] purchased,
acquired or redeemed by the Company otherwise than by redemption
through the Sinking Fund may be credited against subsequent Sinking
Fund requirements.
[The following paragraph to be included if the Securities are
Redeemable Securities or Sinking Fund Securities:]
In the event of redemption of this [name of Security] in part only,
a new [name of Security] or [name of Series] for the unredeemed portion
hereof shall be issued in the name of the Holder hereof upon the
surrender hereof.
[The following paragraph to be included if the Securities are not
Original Issue Discount Securities:]
If an Event of Default, as defined in the Indenture and in the
Authorizing Resolution and supplemental indenture (if any) relating to
the [name of Series] (if there shall be any additional Events of
Default specified in respect of the [name of Series]), shall occur and
be continuing, the principal of all the [name of Series] may be
declared due and payable in the manner and with the effect provided in
the Indenture.
[If the Securities are Original Issue Discount Securities, insert
schedule as to amounts which are payable on acceleration under Section
502 and provable in bankruptcy under Section 504(i) from time to time.]
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to the Indenture or for
the appointment of a receiver or trustee, or for any other remedy under
the Indenture, unless (1) the Trustee shall have received written
notice from such Holder of a continuing Event of Default in respect of
such Securities; (2) the Trustee shall have received a written request
from the Holders of not less than 25% in principal amount of the
Outstanding Securities of the Issue or Series in respect of which the
Event of Default has occurred to institute proceedings in respect of
such Event of Default in its own name as trustee under the Indenture;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request; (4) the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity has failed to
institute any such proceeding; and (5) no direction inconsistent with
such written request has been given to the Trustee during such 60 day
period by the Holders of a majority in principal amount of the
Outstanding Securities of such Series or Issue.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the [name
of Series] under the Indenture at any time by the Company with the
consent of the Holders of a majority in aggregate principal amount of
the Securities affected thereby, voting as a single class (which may
include the [name of Series]), at the time Outstanding, as defined in
the Indenture. The Indenture also contains provisions permitting
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the Holders of specified percentages in aggregate principal amount of
the Securities at the time Outstanding to waive compliance by the
Company with certain provisions of this Indenture and certain past
defaults under the Indenture and their consequences. Any such consent
or waiver by the Holder of this [name of Security] shall be conclusive
and binding upon such Holder and upon all future Holders of this [name
of Security] and of any [name of Security] issued on transfer hereof or
in exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this [name of Security].
No reference herein to the Indenture and no provision of this [name
of Security] or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this [name of
Security] at the times, place, and rate, and in the currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this [name of Security] is
registrable on the Security Register of the Company, upon surrender of
this [name of Security] for registration of transfer at the office or
agency of the Company provided for that purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or
more new [name of Series], of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee
or transferees.
The [name of Series] are issuable only as registered [name of
Series] without coupons in denominations of [currency and minimum
denomination] and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, [name
of Series] are exchangeable for a like aggregate principal amount of
[name of Series] of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment for registration of transfer of this [name
of Security], the Company, the Trustee and any agent of the Company may
treat the Person in whose name this [name of Security] is registered as
the owner hereof for all purposes whether or not this [name of
Security] be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
[Reference to Foreign Currencies]
At the election of the Company, the obligations of the Company (a)
as to the [name of Series] and under the Indenture with respect to the
[name of Series] (except for certain obligations relating to transfers
or exchanges) or (b) as to the [name of Series] under certain
provisions of the Indenture, may be satisfied and discharged upon the
satisfaction of certain conditions, including the deposit with the
Trustee of money or U.S. Government Obligations (as defined in the
Indenture) sufficient for payment of the principal, premium, if any,
and interest at or before the Stated Maturity (as defined in the
Indenture) on the [name of Series].
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on this [name of Security], or for any
claim based hereon, or otherwise in respect
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hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or any
successor corporation, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and
released.
ARTICLE THREE--THE SECURITIES
SECTION 301. TITLE AND TERMS.
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 and Issues. The
terms of each Series and Issue shall be as provided in an Authorizing
Resolution or supplemental indenture or shall be determined in the manner
specified therein. The terms to be specified in respect of each Series or
Issue in the Authorizing Resolution or supplemental indenture, or by such
person and/or procedures as shall be provided therein, shall include the
following:
(1) The title of the Securities of such Series, which shall
distinguish such Series from all other Series;
(2) The aggregate principal amount of the Securities of such Series
which may be authenticated and delivered under this Indenture (except
for Securities of such Series authenticated and delivered upon transfer
of, or in exchange for, or in lieu of, other Securities pursuant to
Section 304, 305, 306, 307, 906 or 1108, and subject to any subsequent
issuances that may be authorized by subsequent Authorizing Resolutions
or supplemental indentures);
(3) The date or dates on which the principal and premium, if any,
of the Securities of such Series or Issue is payable, and, if the
Series shall be Extendible Securities, the terms on which the Company
or any other Person shall have the option to extend the Maturity of
such Securities and the rights, if any, of the Holders to require
payment of the Securities;
(4) The rate or rates at which the Securities of such Series or
Issue shall bear interest, if any (whether floating or fixed), the
provisions, if any, for determining such interest rate or rates and
adjustments thereto, the date or dates from which such interest shall
accrue, the Interest Payment Dates therefor and the Regular Record
Dates (if different from those provided in the form of Security herein
set forth) for the determination of Holders of the Securities of such
Series or Issue to whom interest is payable;
(5) The place or places where the principal of, or premium, if any,
and interest on Securities of such Series or Issue shall be payable (if
other than as provided in Section 1002);
(6) The price or prices at which, the period or periods within
which and the terms and conditions upon which the Securities of such
Series or Issue may be redeemed, in whole or in part, at the option of
the Company, pursuant to a Sinking Fund or otherwise;
(7) The obligation, if any, of the Company to redeem, purchase or
repay Securities of such Series or Issue, in whole or in part, pursuant
to a Sinking Fund or otherwise or at the option of a Holder thereof,
and the price or prices at which, the period or periods within
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which and the terms and conditions upon which such redemption, purchase
or repayment shall be made;
(8) Any Events of Default with respect to the Securities of such
Series or Issue which may be in addition to those provided herein, and
any covenants or obligations of the Company to the Holders of the
Securities of such Series or Issue in addition to those set forth
herein;
(9) If less than 100% of the principal amount of the Securities of
such Series or Issue is payable on acceleration under Section 502 or
provable in bankruptcy under Section 504(i) at any time, a schedule of
or the manner of computing the amounts which are so payable and
provable from time to time;
(10) The form of the Securities of such Series (which may be, but
which need not be, consistent with the form set forth in Article Two
hereof), including whether the Securities of the Series shall be issued
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 Securities;
(11) If other than United States dollars, the currency(ies) in
which payment of the principal of (and premium, if any) or interest, if
any, on the Securities of that Series or Issue shall be payable;
(12) If the principal of (and premium, if any) or interest, if any,
on the Securities of that Series or Issue are to be payable, at the
election of the Company or a Holder thereof, in a currency or
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;
(13) If the amount of payments of principal of (and premium, if
any) or interest, if any, on the Securities of the Series or Issue may
be determined with reference to an index based on a currency or
currencies other than that in which the Securities are stated to be
payable, the manner in which such amounts shall be determined; and
(14) Any other terms of the Securities of such Series or Issue;
provided, that such other terms shall not be inconsistent with any
express terms of this Indenture or in conflict with any express terms
of any other Series or Issue of Securities which shall be issued and
Outstanding.
SECTION 302. DENOMINATIONS.
Unless otherwise provided by Section 301 in connection with the
issuance of Global Securities, the Securities of each Series or Issue may be
issued only in registered form without coupons in denominations of $1,000
and any integral multiple thereof, or in such other currencies or
denominations as may be specified in, or pursuant to, the Authorizing
Resolution or supplemental indenture relating to the Series.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman or Vice Chairman of the Board, its President, one of its Vice
Presidents or its Treasurer under its corporate seal reproduced thereon and
attested by its Secretary or one of its Assistant Secretaries. The signature
of any of these officers on the Securities may be manual or facsimile.
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Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any Series executed by
the Company to the Authenticating Agent, together with a Company Order for
the authentication and delivery of such Securities. The Company Order may
provide that the Securities which are the subject thereof shall be
authenticated and delivered by the Authenticating Agent upon the telephonic,
written or other order of Persons designated in the Company Order, and that
such Persons are authorized to specify the terms and conditions of such
Securities, to the extent permitted by the Authorizing Resolution or
supplemental indenture relating thereto. The Trustee shall execute and
deliver the supplemental indenture (if any) and the Authenticating Agent
shall authenticate and deliver said Securities as specified in such Company
Order; provided, that, prior to authentication and delivery of the first
Securities of any Series, the Trustee and the Authenticating Agent shall
have received:
(1) A copy of the Authorizing Resolution;
(2) A supplemental indenture in respect of the issuance of the
Series, if called for by the terms of the Authorizing Resolution in
respect thereof, executed on behalf of the Company;
(3) An Officers' Certificate to the effect that the Securities of
such Series comply or will comply with the requirements of this
Indenture and the said Authorizing Resolution and supplemental
indenture (if any);
(4) An Opinion of Counsel (a) to the effect that (i) the Securities
of such Series, the Authorizing Resolution and the supplemental
indenture (if any) relating thereto comply or will comply with the
requirements of this Indenture and (ii) the Securities of such Series,
when authenticated and delivered by the Authenticating Agent in
accordance with the said Company Order, will constitute valid and
binding obligations of the Company and enforceable in accordance with
their terms, subject to (A) bankruptcy and other laws affecting
creditors' rights generally as in effect from time to time, (B)
limitations of generally applicable equitable principles and (C) other
exceptions acceptable to the Trustee and its counsel; and (b) relating
to such other matters as may reasonably be requested by the Trustee or
its counsel; and
(5) If the Securities to be issued are Original Issue Discount
Securities, an Officers' Certificate setting forth the Yield to
Maturity for the Securities or other information sufficient to compute
amounts due on acceleration, or specifying the manner in which such
amounts are to be determined, if such Yield to Maturity and other facts
are not specified in the form of the Securities.
Subject to Section 601 hereof, the Authenticating Agent and the Trustee
shall be fully protected in relying upon the documents delivered to it as
provided above in connection with the issuance of any Series of Securities.
The Authenticating Agent shall have the right to decline to
authenticate and deliver any Securities under this Section if the
Authenticating Agent, being advised by counsel, determines
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that such action may not lawfully be taken or if the Authenticating Agent in
good faith by a committee of its Responsible Officers shall determine that
such action would expose the Authenticating Agent to liability to Holders of
previously issued and Outstanding Securities.
Each Security shall be dated the date of its authentication unless
otherwise specified in the Authorizing Resolution relating thereto.
No Security shall be entitled to any benefit under this Indenture, or
be valid or obligatory for any purpose, unless there appears on such
Security a certificate of authentication substantially in the form provided
for herein executed by the Authenticating Agent by the manual signature of
one of its authorized signatories, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any Series or
Issue, the Company may execute, and upon compliance with the requirements of
Section 303 the Authenticating Agent shall authenticate and deliver,
temporary Securities, which may be printed, lithographed, typewritten,
photocopied or otherwise produced, in any denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations
as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
If temporary Securities of any Series or Issue are issued, the Company
shall thereafter cause definitive Securities for such Series or Issue to be
prepared without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities, at the office or
agency of the Company provided for that purpose, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Authenticating Agent shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 305. GLOBAL SECURITIES
If the Company shall establish pursuant to Section 301 that the
Securities of a Series are to be issued in whole or in part in the form of
one or more Global Securities, then the Company shall execute and the
Trustee shall, in accordance with this Section and the Company Order with
respect to such Series, authenticate and deliver one or more Global
Securities in temporary or permanent form that (i) shall represent and shall
be denominated in an aggregate amount equal to the aggregate principal
amount of the Outstanding Securities of such Series to be represented by one
or more Global Securities, (ii) shall be registered in the name of the
Depositary for such Global Security of Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instruction and (iv) shall bear a legend
substantially to the following effect (or such other legend as may be
prescribed by the Depositary): "Unless and until it is exchanged in whole or
in part for Securities in definitive registered form, this Security may not
be transferred except as a whole by the Depositary to the
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nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary."
Each Depositary designated pursuant to Section 301 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under
the Exchange Act and any other applicable statute or regulation.
Beneficial owners of part or all of a Global Security shall be subject
to the rules of the Depositary as in effect from time to time. The Company,
the Trustee and the Paying Agent shall not be responsible for any acts or
omissions of the Depositary, for any Depositary records of beneficial
interests or for any transactions between the Depositary and beneficial
owners.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Securities in definitive form, a
Global Security representing all or a portion of the Securities of a Series
may not be transferred except as a whole by the Depositary for such Series
or to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary
or any such nominee to a successor Depositary for such Series or a nominee
of such successor Depositary.
If at any time the Depositary for any Securities of a Series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such Series or if at any time the Depositary for the
Securities of such Series shall no longer be eligible under Section 305, the
Company shall appoint a successor Depositary eligible under Section 305,
with respect to the Securities of such Series. If a successor Depositary
eligible under Section 305 for the Securities of such Series is not
appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such ineligibility, the Company's election that
the Securities of such Series be represented by one or more Global
Securities shall no longer be effective with respect to the Securities of
such Series and the Company shall execute and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Securities
of such Series, shall authenticate and deliver, Securities of such Series in
definitive form in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such Series in
exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Securities of any Series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or
Securities. In such event the Company shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such Series, shall authenticate and deliver, Securities of
such Series in definitive form and in an aggregate principal amount equal to
the principal amount of the Global Security or Securities representing such
Series in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
Series of Securities represented by a Global Security, the Depositary for
such Global Securities may surrender a Global Security for such Series of
Securities in exchange in whole or in part for Securities of such Series in
definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge:
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(i) to each Person specified by such Depositary a new Security or
Securities of the same Series, of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Global Security;
and
(ii) to such Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities delivered pursuant to clause (i) above.
In any exchange provided for in this Section, the Company will execute
and the Trustee will authenticate and deliver Securities in definitive
registered form in authorized denominations.
Upon the exchange of a Global Security for Securities in definitive
registered form, such Global Security shall be cancelled by the Trustee or
an agent of the Company or the Trustee. The Trustee or such agent shall
deliver such Securities to or as directed by the Persons in whose names such
Securities are so registered.
SECTION 306. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept a register at one of its offices or
agencies maintained pursuant to Section 1002 (herein referred to as the
"Security Register") in which, subject to such reasonable regulations as the
Company may prescribe, the Company shall provide for the registration of
Securities and the registration of transfers of Securities. At all
reasonable times the Security Register shall be open for inspection by the
Trustee. The Security Register shall be kept at the said office or agency,
and said office or agency is hereby initially appointed "Security Registrar"
for the purpose of registering Securities and transfers of Securities as
herein provided. If the Security Registrar shall not be the Authenticating
Agent in respect of any Series, the Company shall promptly notify the
Security Registrar as to the amounts and terms of each Security of such
Series which shall be authenticated and delivered hereunder, and as to the
names in which such Securities shall be registered.
Upon surrender for registration of transfer of any Security at the
office or agency of the Company provided for that purpose, the Company shall
execute, and the Authenticating Agent shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities
of the same Issue and Stated Maturity of a like aggregate principal amount.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 304, 906 or 1108 not involving any
transfer.
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The Company shall not be required (i) to issue, register the transfer
of or exchange any Security of any Series during a period beginning at the
opening of the day which is 15 Business Days before the day of the mailing
of a notice of redemption of Securities of such Series selected for
redemption under Section 1104 and ending at the close of business on the day
of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except, in the case
of any Security to be redeemed in part, the portion thereof not to be
redeemed.
At the option of the Holder, Securities of any Issue (other than a
Global Security) may be exchanged for other Securities of the same Issue of
any authorized denominations, of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Authenticating Agent shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
SECTION 307. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If (i) any mutilated Security is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and (ii) there is delivered to
the Company and the Trustee such security or indemnity as may be required by
them to save each of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Authenticating
Agent shall authenticate and deliver, in exchange for, or in lieu of, any
such mutilated, destroyed, lost or stolen Security, a new Security of like
tenor, Issue and principal amount, bearing a number not assigned to any
Security of the same Series then outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay the indebtedness represented by
such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of the same Issue duly issued hereunder.
The provisions of this Section are exclusive and (to the extent lawful)
shall preclude all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities. If a Security
is replaced pursuant to Section 307, it shall cease to be Outstanding unless
the Company receives proof satisfactory to it that the replaced Security is
held by a protected purchaser, as defined in Section 8-303 of the New York
Uniform Commercial Code.
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SECTION 308. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date, on the Securities of any Issue, shall be paid
to the Persons in whose names the Securities (or one or more Predecessor
Securities) are registered at the close of business on the Regular Record
Date for such interest.
Any interest on any Security of any Issue which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date, together
with any interest thereon (herein called "Defaulted Interest"), shall
forthwith cease to be payable to the Holder, as such, on the Regular Record
Date for such payment; and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each Security of such Issue 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 of such
Defaulted Interest proposed to be paid 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 amount as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of such Issue at his
address as it appears in the Security Register not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names the said Securities (or their respective
Predecessor Securities) are registered 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 in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of such Series 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 payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
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SECTION 309. PERSONS DEEMED OWNERS.
Prior to due presentment for registration of transfer of any Security,
the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name any Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and
premium, if any), and (subject to Section 308) interest on, such Security
and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
SECTION 310. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee. All Securities so delivered and any
Securities surrendered directly to the Trustee for any such purpose shall be
promptly cancelled by the Trustee and all Securities of any Series or Issue
delivered to the Trustee for credit against any Sinking Fund payment in
respect of such Series or Issue pursuant to Section 1202 shall be promptly
cancelled by the Trustee. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and
all Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee
shall be destroyed and certification of their destruction delivered to the
Company unless by a Company Order the Company shall direct that cancelled
Securities be returned to it.
ARTICLE FOUR--SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities
herein expressly provided for, and except as otherwise provided in the
Authorizing Resolution in respect of any Series), and the Trustee, on demand
of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
307 and (ii) Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in
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the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be irrevocably deposited with
the Trustee as trust funds in trust for the purpose an amount of
money or U.S. Governmental Obligations sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the 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;
(3) the Company has delivered to the Trustee a Company Order
setting forth its election that this Indenture shall be discharged; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
All money and U.S. Governmental Obligations deposited with the Trustee
pursuant to Section 401 (or into which such money and U.S. Governmental
Obligations are reinvested) shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for
payment of which such money has been deposited with the Trustee; but such
money and U.S. Governmental Obligations need not be segregated from other
funds except to the extent required by law.
ARTICLE FIVE--REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default" wherever used herein means, with respect to any
Issue of Securities, any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body), unless it is either inapplicable to a particular Series
or Issue or it is specifically deleted or modified in the Authorizing
Resolution and/or supplemental indenture (if any) in respect of the Series
or Issue, and any other events which may be specified as Events of Default
in the Authorizing Resolution and/or supplemental indenture (if any) in
respect of such Series or Issue:
(1) default in the payment of any installment of interest upon any
Security of such Issue when it becomes due and payable, and continuance
of such default for a period of 30 days; or
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(2) default in the payment of the principal of (or premium, if any,
on) any Security of such Issue at its Maturity, and, in the case of
such a Security that becomes due and payable by the terms of Article
Eleven, continuance of such default for a period of 30 days; or
(3) default in the deposit of any Sinking Fund installment in
respect of such Issue, when and as payable by the terms of Section 1201
hereof, and continuance of such default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than (a) a covenant or
warranty relating exclusively to one or more other Issues of Securities
issued hereunder and (b) a default in whose performance or whose breach
is elsewhere in this Section specifically dealt with), and continuance
of such default or breach for a period of 90 days after there has been
given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Securities of all Issues Outstanding (or, with
respect to any such covenant or agreement which is not applicable to
all Issues of Securities, by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of all Issues to which
it is applicable) (in each case voting as a single class), a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry of an order for relief under the United States
federal bankruptcy laws or the entry of any other decree or order by a
court having jurisdiction in the premises adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under the United States federal bankruptcy laws
or any other applicable federal or state law, or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for
a period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case under the
United States federal bankruptcy laws, or the institution by the
Company of proceedings to be adjudicated a bankrupt or insolvent, or
the consent by it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer or
consent seeking reorganization, an arrangement with creditors or an
order for relief under the United States federal bankruptcy laws or any
other applicable federal or state law, or the consent by it to the
filing of any such petition or to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other
official) of the Company or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due, or, to the knowledge of the Trustee, the taking of
corporate action by the Company in furtherance of any such action.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If any one or more of the Events of Default described in clauses (1),
(2) or (3) of Section 501 with respect to Securities of any Series or Issue
shall happen, then, and in each and every such case, during the continuance
of any such Event of Default, either the Trustee, by notice in writing
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to the Company, or the Holders of at least 25% in principal amount of such
Securities then Outstanding, by notice in writing to the Company and to the
Trustee, may declare the principal amount (or, if such Securities are
Original Issue Discount Securities, such portion of the principal amount as
may then be payable on acceleration as provided in the terms thereof) of and
accrued and unpaid interest on all such Securities then Outstanding (if not
then due and payable) to be immediately due and payable, and upon any such
declaration the same shall become and be immediately due and payable,
anything in this Indenture or in the Securities contained to the contrary
notwithstanding. If any one or more of the Events of Default described in
clause (4) of Section 501 shall happen, then, and in each and every such
case, during the continuance of any such Event of Default, either the
Trustee, by notice in writing to the Company, or the Holders of at least 25%
in principal amount of the Securities of all Issues then Outstanding (or, if
such default is not applicable to all Issues of the Securities, the Holders
of at least 25% in principal amount of the Outstanding Securities of all
Issues to which it is applicable) (in each case voting as a single class),
by notice in writing to the Company and to the Trustee, may declare the
principal amount (or, if the Securities of any such Issues are Original
Issue Discount Securities, such portion of the principal amount as may then
be payable on acceleration as provided in the terms of that Issue) of and
accrued and unpaid interest on all the Securities (or all the Securities of
such Issues, if such default is not applicable to all Issues of the
Securities) then Outstanding (if not then due and payable) to be immediately
due and payable, and upon any such declaration the same shall become and be
immediately due and payable, anything in this Indenture or in the Securities
contained to the contrary notwithstanding. If any one or more of the Events
of Default described in clauses (5) or (6) of Section 501 shall happen,
then, and in each and every such case, during the continuance of any such
Event of Default, either the Trustee, by notice in writing to the Company,
or the Holders of at least 25% in principal amount of all the Securities
then Outstanding (voting as a single class), by notice in writing to the
Company and to the Trustee, may declare the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal amount as may then be payable on acceleration as provided in the
terms thereof) of and accrued and unpaid interest on all the Securities then
Outstanding (if not then due and payable), to be immediately due and
payable, and upon any such declaration the same shall become and be
immediately due and payable, anything in this Indenture or in the Securities
contained to the contrary notwithstanding.
At any time after such a declaration of acceleration has been made with
respect to any Securities and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of such Securities
Outstanding (voting as a single class), by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of the
acceleration.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
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(1) default is made in the payment of any installment of interest
on any Security when such interest becomes due and payable and such
default continues for the period of grace, if any, provided for with
respect to such payment, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at its Maturity and such default continues for
the period of grace, if any, provided for with respect to such payment,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of all such Securities, the whole amount then due and payable on
such Securities for principal (and premium, if any) and interest, with
interest, to the extent that payment of such interest is lawful, upon the
overdue principal (and premium, if any) and installments of interest from
the due date thereof at the rate borne by such Securities or, in the case of
Original Issue Discount Securities, at a rate equal to the Yield to Maturity
thereof, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and
may enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to one or more Issues of Securities
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of such
Securities by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or its or
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount (or, in the case
of Original Issue Discount Securities, such portion of the principal
amount thereof as shall then be provable in bankruptcy as specified
therein) of principal (and premium, if any) and interest owing and
unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
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(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, liquidator, assignee, trustee, custodian, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee, and in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any
of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
be for the ratable benefit of the Holders of the Securities in respect of
which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article with
respect to the Securities of an Issue shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Securities of such Issue and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due to the Trustee under
Section 607;
SECOND: In case the principal of the Securities in respect of which
moneys have been collected shall not have become and be then due and
payable, to the payment of interest on the Securities of such Issue in
default in the order of the maturity of the installments of such
interest, with interest (to the extent that payment of such interest is
lawful and such interest has been collected by the Trustee) upon the
overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) applicable to such Securities, such payments to be made
ratably to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Securities in respect of which
moneys have been collected shall have become and shall be then due and
payable, to the payment of the whole amount then owing and unpaid upon
all the Securities of such Issue for principal and interest, with (to
the extent that payment of such interest is lawful and such interest
has been collected by the Trustee) interest upon the overdue principal,
and upon overdue installments of interest at the same rate as the rate
of interest or Yield to Maturity (in the case of Original Issue
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Discount Securities) applicable to the Securities of such Issue; and in
case such moneys shall be insufficient to pay in full the whole amount
so due and unpaid upon the Securities of such Issue, then to the
payment of such principal and interest, without preference or priority
of principal over interest, or of interest over principal, or of any
installment of interest over any other installment of interest, or of
any Security of such Issue over any other Security of such Issue,
ratably to the aggregate of such principal and accrued and unpaid
interest.
FOURTH: To the Company.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or the
Securities, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) the Trustee shall have received written notice from such Holder
of a continuing Event of Default in respect of such Securities;
(2) the Trustee shall have received a written request from the
Holders of not less than 25% in principal amount of the Outstanding
Securities of the Issue or Series in respect of which the Event of
Default has occurred to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60 day period by the Holders of a
majority in principal amount of the Outstanding Securities of such
Series or Issue;
it being understood and intended that no one or more Holders of Securities
of any Series or Issue shall have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders of Securities of that Series or
Issue, or to obtain or to seek to obtain priority or preference over any
other Holders of Securities of that Series or Issue or to enforce any right
under this Indenture, except in the manner herein provided and for the equal
and ratable benefit of all the Holders of Securities of such Series or
Issue.
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 absolute and unconditional right to receive
payment of the principal of (and premium, if any) and (subject to Section
308) interest on such Security on the respective Stated Maturities expressed
in such Security (or, in the case of redemption, on the Redemption Date) and
to institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of such Holder.
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SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case the Company,
the Trustee and the Holders shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
No right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any Series (voting as a single class) 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 in respect of the Securities of such Series,
provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or unduly prejudicial to the rights of Holders of
Securities of all Series not joining in such direction or, in the
opinion of the Trustee, involve the Trustee in personal liability, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of all Series affected thereby (voting as a single
class) may on behalf of the Holders of all such Securities waive any past
default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
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Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard
to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of all Series (or, if the matter in issue does not
relate to all Series of Securities, then the Holders of 10% in principal
amount of the Outstanding Securities of all Series to which such issue
relates) (treated as a single class), or to any suit instituted by any
Holder of any Securities for the enforcement of the payment of the principal
of (or premium, if any) or interest on any such Security on or after the
respective Stated Maturities expressed therein (or, in the case of
redemption, on or after the Redemption Date).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 516. EXEMPTION FROM INDIVIDUAL LIABILITY.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise
in respect thereof, shall be had against any incorporator, stockholder,
officer, director or employee, as such, past, present or future, of the
Company or of any successor Person, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, it being expressly
understood that this Indenture and the obligations issued hereunder are
solely corporate obligations of the Company, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers, directors or employees, as such, of
the Company or of any successor Person, or any of the foregoing Persons,
because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or implied therefrom; and that any and
all such personal liability, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer, director or employee, as
such, because of the creation of the
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indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the
Securities or implied therefrom, are hereby expressly waived and released as
a condition of, and as a consideration for, the execution of this Indenture
and the issuance of such Securities.
ARTICLE SIX--THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provisions 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 has occurred and is continuing, the
Trustee shall exercise 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 wilful 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 in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of all Series (voting as a single class)
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; 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.
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(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.
Within 90 days after the occurrence of any default hereunder in respect
of any Issue of Securities, the Trustee shall transmit by mail to all
Holders of the Securities of such Issue, as their names and addresses appear
in the Security Register, notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security or in the
payment of any Sinking Fund installment, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders; and provided, further, that in the
case of any default of the character specified in Section 501(4) no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, security or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit; and
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(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
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 assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
Section 608, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except
as otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as 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 trust, 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.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to 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.
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SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
The Trustee shall comply with the terms of Section 310 (b) of the TIA.
There shall be excluded from the terms of Section 310(b) of the TIA the
following Indentures and all series of debt securities issued thereunder:
(1) the Indenture dated as of August 1, 1995 between the Company
and the Trustee, formally known as Chemical Bank;
(2) the Indenture dated as of September 1, 1992 between the Company
and the Trustee, formally known as Chemical Bank; and
(3) the Indenture of Trust dated as of August 1, 1987 between the
Company and the Trustee, as successor to Manufacturers Hanover Trust
Company.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States
of America or of any State, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $5,000,000,
subject to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any Affiliate of the Company shall serve as Trustee
hereunder. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of any Series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such Series.
(c) The Trustee may be removed at any time with respect to the
Securities of any Series (i) by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such Series, delivered to
the Trustee and to the Company or (ii) if there shall not have occurred and
be continuing a Default or Event of Default, by written notice from the
Company to the Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
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(2) the Trustee for a Series of Securities shall cease to be
eligible under Section 609 and shall fail to resign after written
request therefor by the Company or by any such Holder of such
Securities, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may remove the Trustee with respect
to all Securities, or (ii) subject to Section 514, unless the Trustee's duty
to resign is stayed as provided in Section 608 of this Indenture, any Holder
who has been a bona fide Holder of a Security for at least six months may,
on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more Series, the Company shall
promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those Series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such Series and that any time there shall be only one Trustee
with respect to the Securities of any particular Series) and shall comply
with the applicable requirements of Section 611. If, within one year after
such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any Series
shall be appointed by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such Series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee with
respect to the Securities of such Series and supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any Series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security of such Series for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such Series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any Series and each
appointment of a successor Trustee with respect to the Securities of any
Series by mailing written notice of such event by first class mail, postage
prepaid, to the Holders of Securities of such Series as their names and
addresses appear in the Security Register. Each notice shall include the
name of the successor Trustee with respect to the Securities of such Series
and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) Every successor Trustee appointed hereunder with respect to all
Securities shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on request of the
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Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee,
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder, subject
nevertheless to its lien, if any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) Series, the Company,
the retiring Trustee, upon payment of its charges, and each successor
Trustee with respect to the Securities of one or more Series shall execute
and deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in,
each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those Series to
which the appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those Series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and (3)
shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees co-trustees
of the same trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery
of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those Series to which the
appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder with respect to the Securities of that or
those Series to which the appointment of such successor Trustee relates,
subject nevertheless to its lien, if any, provided for in Section 607.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the
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execution or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such
Securities.
ARTICLE SEVEN--HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than March 15 and September 15 in each
year, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders of the Securities of each Series
as of the preceding March 1 or September 1, respectively, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities of each Series
contained in the most recent list furnished to the Trustee in respect of
such Series as provided in Section 701 and the name and addresses of Holders
received by the Trustee in its capacity as Security Registrar (if so
acting). The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders of Securities of any Series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish
the Trustee reasonable proof that each such applicant has owned a Security
of such Series for a period of at least six months preceding the date of
such application, and such application states that the applicants desire to
communicate with other Holders of Securities of such Series with respect to
their rights under this Indenture or under the Securities and is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five business days after
the receipt of such application, at its election, either
(i) afford such applicants access to the information in respect of
such Series preserved at the time by the Trustee in accordance with
Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders
of Securities of such Series whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with
Section 702(a), and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Securities of such
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Series whose name and address appear in the information preserved at the
time by the Trustee in accordance with Section 702(a) a copy of the form of
proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable
expenses of mailing, unless within five days after such tender, the Trustee
shall mail to such applicants and file with the Commission, together with a
copy of the material to be mailed, a written statement to the effect that,
in the opinion of the Trustee, such mailing would be contrary to the best
interests of said Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more
of such objections, the Commission shall find, after notice and opportunity
for hearing, that all the objections so sustained have been met and shall
enter an order so declaring, the Trustee shall mail copies of such material
to all such Holders with reasonable promptness after the entry of such order
and the renewal of such tender; otherwise the Trustee shall be relieved of
any obligation or duty to such applicants respecting their application.
(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 shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with
Section 702(b), regardless of the source from which such information was
derived, and that neither the Trustee nor the Company shall be held
accountable by reason of mailing any material pursuant to a request made
under Section 702(b).
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the first
such date after the issuance of the first series of Securities hereunder,
the Trustee shall transmit by mail to all Holders of Securities of each
Series, as their names and addresses appear in the Security Register, a
brief report dated as of such May 15, in accordance with and to the extent
required by Section 313 of the TIA.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which the
Securities of such Series are listed, with the Company, and also with the
Commission. The Company will notify the Trustee when the Securities of any
Series are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY.
The Company will
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and
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periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
ARTICLE EIGHT--CONSOLIDATION, MERGER, CONVEYANCE OR
TRANSFER
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, transfer
or lease the properties and assets of the Company substantially as an
entirety shall be organized and existing under the laws of the United
States of America or any State thereof or the District of Columbia, and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
This Section 801 shall not apply to any merger or consolidation in
which the Company is the surviving corporation or to any Packaging Business
Divestiture.
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made (1) in the case of such a transaction
with respect to the Company, shall succeed to, and be substituted for, and
may exercise every right and power of, the
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Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein and (2) the Person named as
the "Company" in the first paragraph of this instrument or any successor
which shall theretofore have become such in the manner prescribed in this
Article shall be released from its liability under this Indenture and as
obligor on any of the Securities.
SECTION 803. EVIDENCE TO BE FURNISHED TRUSTEE.
The Trustee may receive an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that any such consolidation, merger,
conveyance, transfer or lease, and any such assumption, complies with the
provisions of this Article Eight.
ARTICLE NINE--SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the Trustee, at any
time and from time to time, may enter into one or more indentures
supplemental hereto in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the covenants of the
Company herein and in the Securities contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to provide for the issuance and the terms of any particular
Series of Securities, the rights and obligations of the Company and the
Holders of the Securities of such Series, the form or forms of the
Securities of such Series and such other matters in connection
therewith as the Company shall consider appropriate, including, without
limitation, provisions for (a) additional or different covenants,
restrictions or conditions applicable to such Series, (b) additional or
different Events of Default in respect of such Series, (c) a longer or
shorter period of grace and/or notice in respect of any provision
applicable to such Series than is provided in Section 501, (d)
immediate enforcement of any Event of Default in respect of such Series
or (e) limitations upon the remedies available in respect of any Events
of Default in respect of such Series or upon the rights of the holders
of Securities of such Series to waive any such Event of Default;
provided, that this paragraph (3) shall not be deemed to require the
execution of a supplemental indenture to provide for the issuance of
any Series of Securities unless the same shall be provided for in the
Authorizing Resolution relating thereto; and
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more Series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); and
(5) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein; and
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(6) to make any other change which, in the opinion of counsel to
the Company, does not materially adversely affect the interests of the
Holders of the Series of Securities affected thereby.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of all Series affected
thereby (voting as a single class), by Act of said Holders delivered to the
Company and the Trustee, the Company and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders of
such Securities 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 interest on, any Security, or reduce the principal
amount thereof or the interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security which would be due and payable upon
acceleration under Section 502 or provable in bankruptcy under Section
504, or change the coin or currency in which any Security or any
interest thereon is payable or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular Series of Securities, or which
modifies the rights of the Holders of Securities of such Series with respect
to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other
Series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
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
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authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Unless the Company shall determine, based on an Opinion of Counsel
delivered to the Trustee, that the same shall not be required, every
supplemental indenture executed pursuant to this Article shall conform to
the requirements of TIA as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by the
Authenticating Agent in exchange for Outstanding Securities of the same
Series and Issue.
ARTICLE TEN--COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay (or cause to be paid) the
principal of (and premium, if any) and interest on the Securities of each
Series in accordance with the terms of such Securities and this Indenture.
The principal of (and premium, if any) and interest on Securities shall be
considered paid on the date due if the Paying Agents hold in accordance with
this Indenture on that date money, sufficient to pay all principal (and
premium, if any) and interest then due and the Paying Agents are not
prohibited from paying such money to the Holders on such date pursuant to
the terms of this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
Except as otherwise provided in the Authorizing Resolution in respect
of any Series, the Company will maintain an office or agency in The Borough
of Manhattan, The City of New York, where Securities may be presented or
surrendered for payment, and will maintain an office or agency in The
Borough of Manhattan, The City of New York, where Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company initially appoints the Trustee as such
agent at its Corporate Trust Office for said purposes. The Company will give
prompt written notice to the Trustee of any change in the location of such
office or agency. If at any time the Company shall fail to maintain such
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and
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demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee 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 (in or outside of such Borough) where the Securities may
be presented or surrendered for any or all of 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 such Borough for such
purposes.
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST; APPOINTMENT
OF PAYING AGENT.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of (and premium, if any) or
interest on any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided,
and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, on
or before each due date of the principal of (and premium, if any) or
interest on any Securities, deposit with a Paying Agent a sum, or make other
arrangements so that there will be moneys, in each case sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal
(and premium, if any) 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 initially appoints the Trustee as Paying
Agent.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities 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) in the making of any payment of
principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or 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.
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Any money deposited with the Trustee or any Paying Agent or then held
by the Company, in trust for the payment of the principal of (and premium,
if any) or interest on any Security and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.
SECTION 1004. STATEMENT AS TO DEFAULT.
The Company will deliver to the Trustee, on or before a date not more
than four months after the end of each fiscal year (which on the date hereof
ends on December 31) of the Company ending after the date hereof, a
statement (which shall not be deemed an Officers' Certificate and need not
conform with any of the provisions of Section 102) signed by the principal
executive officer, principal financial officer or principal accounting
officer of the Company, stating that in the course of the performance by the
signers of their duties as officers of the Company and based upon a review
made under their supervision of the activities of the Company during such
year and of the Company's performance under this Indenture they would
normally obtain knowledge whether or not the Company is in default in the
performance of any covenant or agreement set forth in the Indenture, stating
whether or not they have obtained knowledge that the Company is in default
in the performance of any such covenant or agreement and, if so, specifying
each such default of which the signers have knowledge and the nature
thereof.
SECTION 1005. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or
franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material respect to the Holders
of the Securities.
SECTION 1006. LIMITATION UPON LIENS.
(a) The Company will not create, assume, guarantee or suffer to exist,
and will not cause, suffer or permit any Restricted Subsidiary to create,
assume, guarantee or suffer to exist, any indebtedness for borrowed money
secured by pledge of, or mortgage or lien on, any of its Principal Plants,
or on any capital stock of any Restricted Subsidiary, other than
(i) purchase money pledges of, or purchase money mortgages or liens
on, property acquired (including through merger or consolidation) after
the date of execution of this Indenture, so long as such pledges,
mortgages and liens shall attach only to the assets so acquired and
improvements thereon,
(ii) pledges, mortgages or liens on property acquired after the
date of execution of this Indenture (1) existing at the time of
acquisition of such property (including through merger or
consolidation) or (2) which secure indebtedness the proceeds of which
are used to pay, or to reimburse the Company or any Restricted
Subsidiary for, the cost of the acquisition or construction of such
property,
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(iii) pledges of or mortgages or liens on property of a Restricted
Subsidiary existing at the time it becomes a Restricted Subsidiary,
(iv) pledges, mortgages or liens to secure all or any part of the
cost of development or construction of any property or assets or
improvements thereon and which shall be released or satisfied within
120 days after completion of such development or construction,
(v) pledges, mortgages or liens required in connection with the
acquisition, construction or development of additions or extensions to
Principal Plants which shall be financed by obligations described in
Sections 141-145 of the Internal Revenue Code of 1986, as amended, or
by obligations entitled to substantially similar tax benefits under
other legislation or regulations in effect from time to time,
(vi) pledges, mortgages or liens securing indebtedness owing to the
Company or a Restricted Subsidiary by a Restricted Subsidiary,
(vii) pledges, mortgages or liens existing at the date of this
Indenture,
(viii) extensions, renewals or replacements of pledges, mortgages
or liens referred to in clauses (i) to (vii), inclusive, above, or (xi)
below, provided that the amount of indebtedness secured by such
extension, renewal or replacement shall not exceed the principal amount
of indebtedness being extended, renewed or replaced, nor shall the
pledge, mortgage or lien be extended to any additional Principal Plant,
(ix) as permitted under Subsection (b) or Subsection (d) of this
Section 1006,
(x) pledges, mortgages or liens incurred in connection with
sale-leaseback transactions permitted under Section 1007, and
(xi) pledges, mortgages or liens required in connection with any
program, law, statute or regulation of any state or local governmental
entity or authority which provides financial or tax benefits not
available without such pledge, mortgage or lien, provided that
substantially all of the obligations secured thereby are obligations
that are in lieu of, or reduce, a property tax or other payment
obligation that itself would have been secured by a pledge, mortgage or
lien permitted hereunder,
without effectively providing that the Securities (together with, if the
Company shall so determine, any other indebtedness of the Company then
existing or thereafter created ranking equally with the Securities and any
other indebtedness of the Restricted Subsidiary then existing or thereafter
created) shall be secured by the security of such secured indebtedness
equally and ratably therewith.
(b) If the Company or any Restricted Subsidiary shall at any time enter
into a merger or consolidation with another corporation or purchase all or
substantially all of the assets of another corporation, or if the Company
shall sell all or substantially all of its assets to another corporation and
if such other corporation has outstanding indebtedness secured by a mortgage
or other lien which, by reason of an after-acquired property clause or
similar provision therein contained, would extend, after such merger,
consolidation, sale or purchase, to any Principal Plant owned by the Company
or such Restricted Subsidiary immediately prior to such merger,
consolidation, sale or purchase, or to the capital stock of a Restricted
Subsidiary, the Company or such Restricted Subsidiary, as the case may be,
shall in such event be deemed to have created a mortgage or lien,
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within the prohibition of Subsection (a) of this Section 1006, unless (i)
such merger or consolidation involving a Restricted Subsidiary shall
constitute a disposition by the Company of its interest in the Restricted
Subsidiary, or (ii) either (A) at or prior to the effective date of such
merger, consolidation, sale or purchase, such mortgage or lien shall have
been released of record or otherwise satisfied to the extent it would extend
to such Principal Plant or (B) prior to such merger, consolidation, sale or
purchase, the Company or such Restricted Subsidiary, as the case may be,
shall have created, as security for the Securities (and, if the Company
shall so determine, as security for any other indebtedness of the Company
then existing or thereafter created ranking equally with the Securities and
any other indebtedness of the Restricted Subsidiary then existing or
thereafter created), a valid lien which, upon completion of said merger,
consolidation, sale or purchase, will rank prior to the lien of such
mortgage or other lien of such other corporation on such Principal Plant or
such capital stock of Restricted Subsidiaries.
(c) If pursuant to the provisions of this Section 1006 the Company or
any Restricted Subsidiary shall at any time be obligated to secure the
Securities (together with, if the Company shall so determine, any other
indebtedness then existing or thereafter created ranking equally with the
Securities and any other indebtedness of the Restricted Subsidiary then
existing or thereafter created), the Company covenants and agrees that it
will promptly furnish to the Trustee
(i) an Officers' Certificate stating that the applicable covenant
of the Company above set forth in this Section 1006 has been complied
with; and
(ii) an Opinion of Counsel to the effect that such covenant has
been complied with.
(d) Notwithstanding the foregoing provisions of this Section 1006, the
Company and any one or more Restricted Subsidiaries may create, assume,
guarantee or suffer to exist any indebtedness for borrowed money otherwise
subject to the foregoing restrictions and in addition to that permitted by
Subsection (a) or (b) of this Section 1006 (other than pursuant to clause
(x) of said Subsection (a)), and renew, extend or replace such indebtedness
for money borrowed; provided, that, at the time of such creation,
assumption, guarantee, sufferance, renewal, extension or replacement, the
aggregate principal amount of such indebtedness for money borrowed, when
added to the fair market value of property transferred in sale-leaseback
transactions and not reacquired at such time as permitted by Section 1007(c)
and the aggregate principal amount of indebtedness for borrowed money
created, assumed, guaranteed or permitted to exist as permitted by Section
1008(b) (computed without duplication of amounts constituting indebtedness
referred to in this Subsection (d)), does not at the time exceed 10% of Net
Tangible Assets.
SECTION 1007. SALE-LEASEBACK TRANSACTIONS RELATING TO PRINCIPAL PLANTS.
(a) Except to the extent permitted under Subsection (c) of this Section
1007, and except for any transaction involving a lease for a temporary
period, not to exceed three years, by the end of which it is intended that
the use of the leased property by the Company or any Restricted Subsidiary
will be discontinued and except for any transaction with a state or local
authority that is required in connection with any program, law, statute or
regulation that provides financial or tax benefits not available without
such transaction, the Company shall not sell any Principal Plant as an
entirety, or any substantial portion thereof, with the intention of taking
back a lease of such property and the Company will not permit any Restricted
Subsidiary to sell to anyone other than the Company or a Restricted
Subsidiary any Principal Plant as an entirety, or any substantial portion
thereof, with the intention of taking back a lease of such property unless
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(i) the net proceeds of such sale (including any purchase money
mortgages received in connection with such sale) are at least equal to
the fair market value (as determined by an officer of the Company) of
such property and
(ii) subject to Subsection (d) of this Section 1007, the Company
shall, within 120 days after the transfer of title to such property
(or, if the Company holds the net proceeds described below in cash or
cash equivalents, within two years)
(A) purchase, and surrender to the Trustee for retirement as
provided in this Section 1007, a principal amount of Securities
equal to the net proceeds derived from such sale (including the
amount of any such purchase money mortgages), or
(B) repay other Funded Debt of the Company or any Restricted
Subsidiary in an amount equal to such net proceeds, or
(C) expend an amount equal to such net proceeds for the
expansion, construction or acquisition of a Principal Plant, or
(D) effect a combination of such purchases, repayments and
plant expenditures in an amount equal to such net proceeds.
(b) At or prior to the date 120 days after a transfer of title to a
Principal Plant which shall be subject to the requirements of this Section
1007, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that the covenant of the
Company in Section 1007(a) has been complied with and setting forth in
detail the manner of such compliance, which certificate shall contain
information as to (A) the amount of Securities theretofore redeemed and
the amount of Securities theretofore purchased by the Company and
cancelled by the Trustee and the amount of Securities purchased by the
Company and then being surrendered to the Trustee for cancellation, (B)
the amount thereof previously credited under Subsection (d) of this
Section 1007, (C) the amount thereof which it then elects to have
credited on its obligation under Subsection (d) of this Section 1007,
and (D) any amount of other indebtedness which the Company has repaid
or will repay and of the expenditures which the Company has made or
will make in compliance with its obligation under Subsection (a) of
this Section 1007,
(ii) a deposit with the Trustee for cancellation of the Securities
then being surrendered as set forth in such certificate; and
(iii) an Opinion of Counsel to the effect that such covenant has
been complied with.
(c) Notwithstanding the restriction of Subsection (a) of this Section
1007, the Company and any one or more Restricted Subsidiaries may transfer
property in sale-leaseback transactions which would otherwise be subject to
such restriction if the aggregate amount of the fair market value of the
property so transferred and not reacquired at such time, when added to the
aggregate principal amount of indebtedness for borrowed money permitted by
Section 1006(d) and Section 1008(b) which shall be outstanding at the time
(computed without duplication of the value of property transferred as
provided in this Subsection (c)), does not at the time exceed 10% of Net
Tangible Assets.
(d) The Company, at its option, shall be entitled to a credit, in
respect of its obligation to purchase and retire Securities under this
Section 1007, for the principal amount of any Securities
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deposited with the Trustee for the purpose and also for the principal amount
of (i) any Securities theretofore redeemed at the option of the Company and
(ii) any Securities previously purchased by the Company and cancelled by the
Trustee, and in each case not theretofore applied as a credit under this
Subsection (d) or Section 1202.
(e) For purposes of this Section 1007, the amount or the principal
amount of Securities which are Original Issue Discount Securities shall be
the principal amount of said Original Issue Discount Securities that on the
date of the purchase or redemption of such Securities referred to in this
Section could be declared to be due and payable pursuant to Section 502.
SECTION 1008. LIMITATION UPON FUNDED DEBT OF RESTRICTED SUBSIDIARIES.
(a) The Company will not permit any Restricted Subsidiary to create,
assume or permit to exist any Funded Debt other than (A) Funded Debt secured
by a mortgage, pledge or lien which is permitted to such Restricted
Subsidiary under the provisions of Section 1006, (B) Funded Debt owed to the
Company or any Restricted Subsidiary, (C) Funded Debt of a corporation
existing at the time it becomes a Restricted Subsidiary, (D) Funded Debt
created in connection with, or with a view to, compliance by such Restricted
Subsidiary with the requirements of any program, law, statute or regulation
of any federal, state or local governmental authority, which is applicable
to such Restricted Subsidiary and which provides financial or tax benefits
to such Restricted Subsidiary which are not available directly to the
Company or available directly to the Company only on terms which the Company
determines are not as favorable as those available to the Restricted
Subsidiary and (E) guarantees existing at the date of this Indenture.
(b) Notwithstanding the provisions of paragraph (a) of this Section
1008, any Restricted Subsidiary may create, assume or permit to exist any
Funded Debt in addition to that permitted by paragraph (a) of this Section
1008, and renew, extend or replace such Funded Debt, provided that at the
time of such creation, assumption, renewal, extension or replacement, and
after giving effect thereto, the aggregate principal amount of such Funded
Debt which would otherwise be subject to the foregoing restriction, together
with the aggregate principal amount of indebtedness for borrowed money
permitted by Subsection (d) of Section 1006 and the aggregate amount of the
fair market value of property transferred in sale-leaseback transactions and
not reacquired at such time as permitted by Subsection (c) of Section 1007
(computed without duplication of amounts) does not at the time exceed 10% of
Net Tangible Assets.
SECTION 1009. MAINTENANCE OF INSURANCE.
The Company will cause its property and the property of each Subsidiary
to be insured at all times against loss from damage or destruction by fire
and other risks to the extent and in such manner as is customary for
companies comparable in size to the Company and conducting businesses
similar in size and nature to the businesses carried on by the Company from
time to time; provided, however, that the Company and each of its
Subsidiaries may adopt (in lieu of or supplementing such insurance) any
other or supplemental plan or method of protection against loss, including
self-insurance plans, as may be determined by the Company to be in the
overall best interests of the Company from time to time.
SECTION 1010. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1005 to 1009, inclusive, and any
other covenant or condition set forth in any
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Authorizing Resolution or supplemental indenture for the benefit of the
Holders of the Securities or any particular Series of Securities, if the
Holders of not less than a majority in principal amount of the Securities at
the time Outstanding of all Series which are entitled to the benefits
thereof (voting as a single class) shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect
such covenant 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 covenant or condition shall
remain in full force and effect.
ARTICLE ELEVEN--REDEMPTION OF SECURITIES
SECTION 1101. RIGHT OF REDEMPTION.
Redeemable Securities may be redeemed otherwise than through the
operation of the Sinking Fund provided for in Article Twelve at the election
of the Company at the times, on the conditions and at the Redemption Prices
specified therein, in (or pursuant to) the Authorizing Resolution relating
thereto and in the supplemental indenture (if any) executed in connection
with the issuance of such Securities, any Redemption Price to be accompanied
by accrued interest to the Redemption Date.
SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company or otherwise,
as permitted or required by any provision referred to in Section 1101, shall
be made in accordance with such provision and this Article.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or set forth in an Officers' Certificate which states
that such election has been duly authorized by all requisite corporate
action on the part of the Company. In case of any redemption at the election
of the Company of less than all of the Securities the Company shall, at
least 50 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 and of the principal amount of Securities of the Series
or Issue or the several Series or Issues, as the case may be, to be
redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with
an Officers' Certificate evidencing compliance with such restriction.
SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any Series or Issue are to be
redeemed, the particular Securities of such Series or Issue to be redeemed
shall be selected not more than 90 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such Series or Issue 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 of the Series or
Issue or any integral multiple thereof) of the principal amount of such
Securities of a denomination larger than such minimum denomination. If the
Company shall so specify, Securities held by the Company or any Subsidiary
shall not be included in the Securities selected for redemption.
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The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been
or is to be redeemed.
SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of the Series or Issue
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security, and that interest thereon
shall cease to accrue on and after said date,
(5) that the redemption is for a Sinking Fund, if such is the case;
and
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name of and at the expense of the Company.
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) any accrued interest
on, all the Securities or portions thereof which are to be redeemed on that
date.
SECTION 1107. 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 thereof and from and after such date (unless the Company
shall default in the payment of the Redemption Price and accrued interest)
such Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice such Security shall
be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall
be
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payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such on the relevant Regular or Special Record
Date according to their terms and the provisions of Section 308.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid or duly provided for, bear interest from the Redemption Date at
the rate borne by the Security or, in the case of Original Issue Discount
Securities, at a rate equal to the Yield to Maturity thereof.
SECTION 1108. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at the office or agency of the Company maintained for that purpose pursuant
to Section 1002 (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
Authenticating Agent shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities of the same
Issue, 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; except that if a
Global Security is so surrendered, the Company shall execute, and the
Trustee shall authenticate, upon Company Order, and deliver to the
Depositary for such Global Security without service charge, a new Global
Security in a denomination equal to and in exchange for the unredeemed
portion of the principal amount of the Global Security so surrendered.
ARTICLE TWELVE--SINKING FUND
SECTION 1201. SINKING FUND PAYMENTS.
As and for a Sinking Fund for the retirement of Sinking Fund
Securities, the Company will, until all such Securities are paid or payment
thereof is duly provided for, deposit in accordance with Section 1106, at
such times and subject to such terms and conditions as shall be specified in
the provisions of such Securities and the Authorizing Resolution and
supplemental indenture (if any) relating thereto, such amounts in cash as
shall be required or permitted under such provisions in order to redeem
Securities on the specified Redemption Dates at a Redemption Price equal to
their principal amounts, less in each such case the amount of any credit
against such payment received by the Company under Section 1202. Each such
Sinking Fund payment shall be applied to the redemption of Securities on the
specified Redemption Date as herein provided.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Securities of the same Issue (other than
any previously called for redemption or theretofore applied as a credit
against a Sinking Fund payment or as a credit under Section 1007(d)) and (2)
may apply as a credit Securities of the same Issue redeemed at the election
of the Company pursuant to Section 1101 or through the operation of the
Sinking Fund in any period in excess of the minimum amount required for such
period under Section 1201 or the provisions relating to such Issue referred
to in Section 1201 and not theretofore applied as a credit against a Sinking
Fund payment or a credit under Section 1007(d), in each case in satisfaction
of all or any part of any Sinking Fund payment required to be made pursuant
to
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Section 1201. Each such Security so delivered or applied shall be credited
for such purpose by the Trustee at a Redemption Price equal to its principal
amount and the required amount of such Sinking Fund payment shall be reduced
accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
If in any year the Company shall elect to redeem in excess of the
minimum principal amount of Securities required to be redeemed pursuant to
Section 1201 or to satisfy all or any part of any Sinking Fund payment by
delivering or crediting Securities pursuant to Section 1202, then at least
60 days prior to the date on which the Sinking Fund payment in question
shall be due (or such shorter period as shall be approved by the Trustee),
the Company shall deliver to the Trustee an Officers' Certificate specifying
the amount of the Sinking Fund payment and the portions thereof which are to
be satisfied by payment of cash, by delivery of Securities or by crediting
Securities, and, at least 45 days prior to the Sinking Fund payment date (or
such shorter period as shall be approved by the Trustee), will also deliver
to the Trustee the Securities to be so delivered. Such Officers' Certificate
shall also state that the Securities forming the basis of any such credit do
not include any Securities which have been redeemed through the operation of
the Sinking Fund in the minimum amount required under Section 1201,
previously credited against any Sinking Fund payment or credited in
accordance with Section 1007(d). The Trustee shall, upon the receipt of such
Officers' Certificate (or, if it shall not have received such an Officers'
Certificate at least 60 days prior to the Sinking Fund payment date, then
following such 60th day), select the Securities to be redeemed upon the next
Sinking Fund payment date, in the manner specified in Section 1104, and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1105. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1107 and 1108.
ARTICLE THIRTEEN--DEFEASANCE AND COVENANT
DEFEASANCE
SECTION 1301. DEFEASANCE.
Upon satisfaction of the applicable conditions specified in Section
1303, the Company shall be discharged from all of its obligations under the
Securities and under this Indenture with respect to the Securities, except
for its obligations under Sections 304, 306, 307, 607, 1002 and 1003 and
this Article Thirteen (referred to below as a "Defeasance").
SECTION 1302. COVENANT DEFEASANCE.
Upon satisfaction of the applicable conditions specified in Section
1303, the Company shall be released from its obligations under Article Eight
and Sections 1005 through 1009, inclusive, with respect to the Securities
and the occurrence of an event specified in Section 501(4) (with respect to
Article Eight or any of said Sections 1005 through 1009, inclusive) shall
not be deemed to be an Event of Default with respect to the Securities
(referred to below as a "Covenant Defeasance"). Such Covenant Defeasance
means that, with respect to the Securities, the Company may omit to comply
with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section, whether directly or indirectly by
reason of any reference in this Indenture or in any other document to any
such Section, and that the Securities shall thereafter be deemed not to be
Outstanding for the purposes of any direction,
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waiver, consent or declaration or Act of Holders (and the consequences of
any thereof) in connection with the provisions of Article Eight and Sections
1005 through 1009, inclusive, but shall continue to be deemed Outstanding
for all other purposes hereunder.
SECTION 1303. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
1301 or Section 1302 to the Securities of any Series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (which term, for purposes of this Article,
shall also refer to another trustee satisfying the requirements of
Section 609 who shall agree to comply with the applicable provisions of
this Article) in trust for the Holders of such Securities (A) money in
an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms, and with no further reinvestment, will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge the principal of (and premium, if
any) and interest on such Securities at or before the Stated Maturity
thereof (and to redeem any Sinking Fund Securities required to be
redeemed prior to such payment and discharge) in accordance with this
Indenture and such Securities. Notwithstanding the foregoing, in the
case of any Redeemable Securities which are to be redeemed prior to
their respective Stated Maturities, no deposit under this paragraph
shall be deemed sufficient to pay and discharge such Securities as
aforesaid until proper notice of such redemption shall have been given
in accordance with Article XI of this Indenture or irrevocable
instructions shall have been given to the Trustee to give such notice.
(2) The Company shall have delivered to the Trustee an Opinion of
Counsel stating that the Holders of such Securities will not recognize
gain or loss for Federal income tax purposes as a result of such
deposit, Defeasance or Covenant Defeasance and will be subject to
Federal income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit, Defeasance or
Covenant Defeasance had not occurred.
(3) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that such Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(4) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to such
Securities shall have occurred and be continuing on the date of such
deposit or, insofar as any event described in Section 501(5) or (6), at
any time prior to the 91st day after such deposit.
(5) Such deposit, Defeasance or discharge shall not result in a
violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(6) 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.
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(7) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest under the TIA with respect to
any Securities of the Company or any guarantor.
(8) The Company shall have delivered to the Trustee (i) an
Officers' Certificate stating that all conditions precedent provided
for relating to such Defeasance, discharge or deposit have been
complied with, and (ii) an Opinion of Counsel stating that all
conditions precedent provided for relating to such Defeasance,
discharge or deposit have been complied with.
SECTION 1304. APPLICATION OF FUNDS.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee pursuant to Section 1303 in respect of one or
more Series of Securities 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 any 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 (in addition to any U.S. Government Obligations
deposited pursuant to Section 1303), and indemnify the Trustee against, any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1303 or the principal and interest
received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of the Securities for which
such deposit is made.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1303 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect an equivalent Defeasance or
Covenant Defeasance.
SECTION 1305. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 1304 by reason of any
order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
obligations under this Indenture and the Securities of such Series shall be
revived and reinstated as though no deposit had occurred pursuant to this
Article Thirteen until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 1304; provided, however,
that if the Company makes any payment of principal of and any premium or
interest on any Security following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of the Securities
of such Series to receive such payment from the money held by the Trustee or
the Paying Agent.
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be as original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
ANHEUSER-BUSCH COMPANIES, INC. THE CHASE MANHATTAN BANK,
Trustee
By: /s/ WILLIAM J. KIMMINS, JR. By: /s/ ROBERT S. PESCHLER
---------------------------------- ------------------------------
William J. Kimmins, Jr. Robert S. Peschler
Vice President and Treasurer Assistant Vice President
59
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.4
<SEQUENCE>5
<FILENAME>exh10p4.txt
<DESCRIPTION>INCENTIVE STOCK PLAN
<TEXT>
<PAGE>
Exhibit 10.4
ANHEUSER-BUSCH COMPANIES, INC.
1989 INCENTIVE STOCK PLAN
(AS AMENDED DECEMBER 20, 1989, DECEMBER 19, 1990,
DECEMBER 15, 1993, DECEMBER 20, 1995, AND NOVEMBER 26, 1997)
SECTION 1. PURPOSE.
The purpose of the Plan is to attract, retain, motivate and reward
employees of the Company, its Subsidiaries and Affiliates with compensatory
arrangements that involve Options and SARs.
SECTION 2. DEFINITIONS.
(a) "Act" means the Securities Exchange Act of 1934, as amended from
time to time.
(b) "Affiliate" means any entity in which the Company has a substantial
direct or indirect equity interest (other than a Subsidiary), as determined
by the Committee.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code as in effect from time to
time.
(e) "Committee" means the Stock Option Committee described in Section 12
hereof.
(f) "Company" means Anheuser-Busch Companies, Inc. and its successors.
(g) "Disability" means the condition of being "disabled" within the
meaning of Section 422(c)(6) of the Code or any successor provision.
(h) "Eligible Employee" means a person who is eligible to receive an
option under Section 4 of the Plan.
(i) "Employer" means the Company, the Subsidiary, or the Affiliate which
employs the Optionee.
(j) "Fair Market Value" of Stock on a given date means (i) the average
of the highest and lowest selling prices per share of Stock reported on the
New York Stock Exchange Composite Tape or similar facility for such date,
(ii) if Stock is not listed on the New York Stock Exchange, the average of
the highest and lowest selling prices per share of Stock as reported for
such date on the principal stock exchange in the U.S. on which Stock is
listed (as determined by the Committee), or (iii) if neither of the
preceding clauses is applicable, the value per share determined by the
Committee in a manner consistent with the Treasury Regulations under
Section 2031 of the Internal Revenue Code. If no sale of Stock occurs on
such date, but there were sales reported within a reasonable period both
before and after such date, the weighted average of the means between the
highest and lowest selling prices on the nearest date before and the
nearest date after such date shall be used, with the average to be weighted
inversely by the respective numbers of trading days between the selling
dates and such date.
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(k) "ISO" or "Incentive Stock Option" means an option to purchase Stock
which is designated by the Committee as an "Incentive Stock Option" and
which qualifies as an "incentive stock option" under Section 422 (or any
successor provision) of the Code.
(l) "Limited Right" has the meaning given in Section 7.
(m) "NQSO" or "Non-Qualified Stock Option" means an option to purchase
Stock which is designated by the Committee as a "Non-Qualified Stock
Option," or which is designated by the Committee as an ISO but which fails
or ceases to qualify as an "incentive stock option" under the Code.
(n) "Option" means an ISO or an NQSO.
(o) "Option Agreement" means the written agreement referred to in
Section 5(a) between the Company and the Optionee evidencing an Option or
SAR.
(p) "Optionee" means a person to whom an Option or SAR is granted
pursuant to the Plan.
(q) "Plan" means the Anheuser-Busch Companies, Inc. 1989 Incentive Stock
Plan, as amended from time to time.
(r) "Reporting Person," as of a given date, means an Optionee who would
be required to report a purchase or sale of Stock occurring on such date to
the Securities and Exchange Commission pursuant to Section 16(a) of the Act
and the rules and regulations thereunder.
(s) "Rule 16b-3" means Rule 16b-3 (as amended from time to time)
promulgated by the Securities and Exchange Commission under the Act, and
any successor thereto, as in effect as to the Plan. (t) "SAR" means a
stock appreciation right, which is the right to receive cash, Stock, or
other property having a value on the date the SAR is exercised equal to (i)
the excess of the Fair Market Value of one share of Stock on the exercise
date over (ii) the base price of the SAR. The term "SAR" does not include
a Limited Right.
(u) "Stock" means shares of the common stock of the Company, par value
$1.00 per share, or such other class or kind of shares or other securities
as may be applicable under Section 10.
(v) "Subsidiary" means a "subsidiary corporation" of the Company as
defined in Section 424 (or any successor provision) of the Code.
(w) "Withholding Taxes" means, in connection with an Option or SAR
(including without limitation the receipt of Stock pursuant to the exercise
of an NQSO or SAR or the disposition of ISO shares), (a) the total amount
of Federal and state income taxes, social security taxes and other taxes
which the Employer of the Optionee is required to withhold ("Required
Withholding Taxes") plus (b) any other such taxes which the Employer, in
its sole discretion, withholds at the request of the Optionee.
SECTION 3. MAXIMUM SHARES.
(a) The maximum number of shares of Stock which may be issued to
Eligible Employees pursuant to Options and SARs under the Plan shall be
44,000,000 shares, subject to adjustment as provided in Section 10. For
this purpose:
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(i) Only shares actually issued pursuant to the grant or
exercise of an Option or SAR shall be counted against the Plan
maximum.
(ii) Except to the extent prohibited by Rule 16b-3, Shares
which are forfeited by an Optionee after issuance shall be
deemed to have never been issued under the Plan and accordingly
shall not be counted against the Plan maximum.
(iii) The number of shares available for the grant of new
Options and SARs at any particular time shall be (A) the
maximum number of shares specified above (as adjusted), minus
(B) the sum of the number of shares issued under the Plan prior
to that time and the number of shares issuable upon exercise of
Options and SARs outstanding at that time.
In its discretion, the Company may issue treasury shares or authorized but
previously unissued shares.
(b) Notwithstanding paragraph (a) above, the maximum number of shares
for which ISOs may be granted under the Plan shall be 44,000,000 shares,
subject to adjustment as provided in Section 10, regardless of the fact
that a lesser number of shares is issued pursuant to the exercise of ISOs.
(c) Shares issued under other plans of the Company shall not be counted
against the Plan maximum.
(d) Notwithstanding any other provisions of this Plan, the maximum
number of options that may be granted to any Eligible Employee during any
calendar year shall be 500,000, subject to adjustment as provided in
Section 10.
SECTION 4. ELIGIBILITY.
Officers and management employees of the Company, Subsidiaries or
Affiliates shall be eligible to receive Options and SARs under the Plan. A
Director of the Company or a Subsidiary or an Affiliate shall be eligible
only if he or she also is an officer or employee of the Company, a
Subsidiary or an Affiliate. Notwithstanding the foregoing, persons
employed only by Affiliates shall not be eligible to receive ISOs.
SECTION 5. OPTION AND SAR GRANTS.
(a) Subject to the limitations in this Plan, the Committee may cause
the Company to grant Options and/or SARs to such Eligible Employees, at
such times, in such amounts, for such periods, becoming exercisable at such
times, with such option prices or base prices, and subject to such other
terms, conditions, and restrictions as the Committee deems appropriate.
Each Option or SAR shall be evidenced by a written Option Agreement between
the Company and the Optionee. In granting an Option or SAR, the Committee
may take into account any factor it deems appropriate and consistent with
the purpose of the Plan. Options and/or SARs may be granted as additional
compensation to the Optionee, or in lieu of other compensation. The
Committee may delegate to officers of the Company from time to time the
authority to determine the sizes, dates, and other terms and conditions of
Options and/or SARs granted hereunder, provided that (i) the Committee may
impose such limitations and conditions upon any such delegated authority as
it deems appropriate, and (ii) the Committee may not delegate any such
authority with respect to Options or SARs granted to a Reporting Person.
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(b) Options and SARs may be granted separately or as alternatives to
each other, except that (i) Options and SARs shall be granted as
alternatives to each other only if the option prices and the base prices
are equal, (ii) Limited Rights shall not be granted separately, and shall
be granted only as alternatives to Options and/or SARs, (iii) SARs and/or
Limited Rights which are alternatives to ISOs may be granted only at the
same time the ISO is granted, and (iv) SARs which are alternatives to
Options, and Limited Rights which are alternatives to Options or SARs,
shall expire or erminate at the same time as the Option or SARs to which
they are alternatives.
(c) All or any portion of any payment to an Optionee whether in cash or
shares of Stock, may be deferred to a later date if and as provided in the
Option Agreement. Deferrals may be for such periods and upon such terms
and conditions (including the provision of interest, dividend equivalents,
or other return on such amounts) as the Committee may determine.
(d) Option Agreements may contain any provision approved by the
Committee, not inconsistent with Section 9, relating to the period for
exercise after termination of employment, death or Disability.
(e) Option Agreements may, in the discretion of the Committee, contain
a provision permitting an Optionee to designate the person who may exercise
an Option or SAR upon the Optionee's death, either by Will or by
appropriate notice to the Company.
(f) Notwithstanding any other provision of this Section 5, (i) no
Option or SAR shall contain a so-called reload feature under which
Options or SARs are automatically granted to Optionees upon exercise of
Options or SARs, and (ii) no Option or SAR shall be granted in exchange for
a so-called underwater Option or SAR which has an option price or base
price in excess of the Fair Market Value of the Stock (nor shall an
underwater Option or SAR be amended to reduce its option price or base
price).
SECTION 6. PROVISIONS GOVERNING OPTIONS AND SARS.
(a) If Options and SARS are alternatives to each other, the exercise of
all or part of one automatically shall cause an immediate equal and
corresponding termination of the other.
(b) An Optionee shall have none of the rights of a shareholder with
respect to shares of Stock subject to his or her Option or SAR until shares
are issued in his or her name.
(c) Nothing in the Plan or any Option Agreement shall confer on any
person any right or expectation to continue in the employ of his or her
Employer, or shall interfere in any manner with the absolute right of the
Employer to change or terminate such person's employment at any time for
any reason or for no reason.
(d) The Committee may provide in Option Agreements for the
transferability of NQSOs, SARs, and Limited Rights (other than SARs and
Limited Rights which are alternatives to ISOs). Transferability may be
subject to such conditions and limitations as the Committee deems
appropriate; provided, however, that SARs and Limited Rights which are
alternatives to NQSOs may be transferred only in tandem with such NQSOs.
Except to the extent otherwise expressly set forth in the Option Agreement
or expressly permitted by the Committee in writing in accordance with the
foregoing, Options, SARs, and Limited Rights shall not be transferable
other than by will or the laws of descent and distribution, and shall be
exercisable during the Optionee's lifetime only by the Optionee or his or
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her guardian or legal representative. The Committee shall determine the
extent to which limitations, covenants, and other provisions in the Option
Agreements and this Plan apply or relate to the original Optionee, his or
her transferee(s), or all of them.
(e) Except as provided in Section 10(b), (A) the option price per
share of an Option or the base price of an SAR shall not be less than Fair
Market Value on the Option's or the SAR's grant date, nor less than the par
value of a share of Stock, except that an SAR which is an alternative to an
Option but which is granted at a later time may have a base price equal to
the option price even though the base price is less than Fair Market Value
on the date the SAR is granted.
(f) The grant of an Option and the Option Agreement for an Option must
clearly identify the Option as either an ISO or as an NQSO.
(g) In the case of an SAR, the Option Agreement may specify the form of
payment of SARs or may provide that the form is to be determined at a later
date, and may require the satisfaction of any rules or conditions in
connection with receiving payment in any particular form. If the Optionee
is a Reporting Person at the time of grant or during the SAR's term and is
given an election to receive cash in full or partial settlement of an SAR,
the Committee shall have sole discretion to approve or disapprove such
election at any time after it is made.
SECTION 7. LIMITED RIGHTS.
(a) The Committee shall have authority to grant limited stock
appreciation rights ("Limited Rights") to the holder of any Option or SARs
granted under the Plan (the "Related Option or SAR") with respect to all or
some of the shares of Stock covered by such Related Option or SAR. A
Limited Right may be granted either at the time of grant of the Related
Option or SAR or (except in the case of an ISO) at any time thereafter
during its term. A Limited Right may be granted to an Optionee with
respect to Options irrespective of whether such Optionee is being granted
or has been granted an SAR. Limited Rights shall be transferable only when
the Related Option or SAR is transferable and under the same conditions,
and shall be exercisable during the Optionee's lifetime only by the
Optionee or his or her guardian or legal representative. If an ISO is a
Related Option to Limited Rights, the Limited Rights may be exercised only
if the Fair Market Value per share of Stock on the exercise date exceeds
the option price per share of the ISO. A Limited Right may be exercised
only during the sixty-day period beginning on an "Acceleration Date" (as
defined in Section 11(a) hereof); provided, however, that if the
Acceleration Date occurs within the six month period following the grant of
the Limited Right or the grant of the Related Option or SAR, whichever is
applicable as provided below, to a Reporting Person, then the Limited Right
will be exercisable by the Reporting Person for a period of thirty days
following expiration of such six-month period, or, if earlier, thirty days
following the Optionee's death or Disability. Each Limited Right shall be
exercisable only if, and to the extent that, the Related Option or SAR is
exercisable (ignoring paragraph (j) below). Notwithstanding the provisions
of the two immediately preceding sentences, no Limited Right may be
exercised by a Reporting Person until the expiration of six months from the
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<PAGE>
date of grant of the Limited Right unless otherwise permitted by Rule 16b-3
in the case of an SAR granted prior to the grant of the Limited Right.
(b) Upon the exercise of Limited Rights, the holder thereof shall
receive in cash whichever of the following amounts is applicable:
(i) in the case of an exercise of Limited Rights by reason
of an acquisition of Stock described in Section 11(a), an
amount equal to the Acquisition Spread (as defined in paragraph
(d) below); or
(ii) in the case of an exercise of Limited Rights by reason
of shareholder approval of an agreement described in Section
11(a), an amount equal to the Merger Spread (as defined in
paragraph (f) below);
(iii) in the case of an exercise of Limited Rights by reason
of a change in the composition of the Board of Directors as
described in Section 11(a), an amount equal to the Board Change
Spread (as defined in paragraph (g) below);
(iv) in the case of an exercise of Limited Rights by reason
of stockholder approval of a plan of liquidation described in
Section 11(a), an amount equal to the Liquidation Spread (as
defined in paragraph (i) below);
provided, however, that if an ISO is a Related Option to the Limited
Rights, the cash received for each Right shall not exceed 100% of the
spread under the ISO, i.e., the difference between the option price of the
ISO and the Fair Market Value of Stock on the date the Limited Right is
exercised.
(c) The term "Acquisition Price per Share" as used in this Section
shall mean, with respect to the exercise of any Limited Right by reason of
an acquisition of Stock described in Section 11(a), the greater of (i) the
highest price per share of Stock stated on the Schedule 13D, 14D-1 or
similar schedule (or amendment thereto) filed by the holder of 50% or more
of the Company's voting power which gives rise to the exercise of such
Limited Right, and (ii) the highest Fair Market Value per share of Stock
during the sixty-day period ending on the date the Limited Right is
exercised.
(d) The term "Acquisition Spread" as used in this Section shall mean an
amount equal to the product computed by multiplying (i) the excess of (A)
the Acquisition Price per Share over (B) the option or base price per share
of Stock at which the Related Option or SAR is exercisable, by (ii) the
number of Limited Rights being exercised.
(e) The term "Merger Price per Share" as used in this Section shall
mean, with respect to the exercise of any Limited Right by reason of
shareholder approval of an agreement described in Section 11(a), the
greater of (i) the fixed or formula price for the acquisition of shares of
Stock specified in such agreement if such fixed or formula price is
determinable on the date on which such Limited Right is exercised, and (ii)
the highest Fair Market Value per share of Stock during the sixty-day
period ending on the date on which such Limited Right is exercised. Any
securities or property which are part or all of the consideration paid for
shares of Stock pursuant to such agreement shall be valued in determining
the Merger Price per share at the higher of (A) the valuation placed on
such securities or property by the corporation, person or other entity
which is a party with the Company to such agreement or (B) the valuation
placed on such securities or property by the Committee.
6
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(f) The term "Merger Spread" as used in this Section shall mean an
amount equal to the product computed by multiplying (i) the excess of (A)
the Merger Price per Share over (B) the option or base price per share of
Stock at which the Related Option or SAR is exercisable, by (ii) the number
of Limited Rights being exercised.
(g) The term "Board Change Spread" as used in this Section shall mean,
with respect to the exercise of any Limited Rights by reason of a change in
the composition of the Board described in Section 11(a), an amount equal to
the product computed by multiplying (i) the excess of (A) the highest Fair
Market Value per share of Stock during the sixty-day period ending on the
date the Limited Rights are exercised over (B) the option or base price per
share of Stock at which the Related Option or SAR is exercisable, by (ii)
the number of Limited Rights being exercised.
(h) The term "Liquidation Price per Share" as used in this Section
shall mean, with respect to the exercise of any Limited Right by reason of
shareholder approval of a plan of liquidation described in Section 11(a)
the greater of (i) the highest amount paid or to be paid per share of Stock
pursuant to the plan of liquidation as determined by the Committee and (ii)
the highest Fair Market Value per share of Stock during the sixty-day
period ending on the date on which such Limited Right is exercised. Any
securities or property which (A) are part or all of the consideration paid
for shares of Stock pursuant to such plan of liquidation or (B) are to be
sold and the proceeds distributed in liquidation shall be valued in
determining the Liquidation Price per share at the higher of (i) the
valuation placed on such securities or property by the Company upon the
distribution of such securities or property in accordance with the plan of
liquidation, if kno n, at the time of the exercise of such Limited Right,
or (ii) the valuation placed on such securities or property by the
Committee.
(i) The term "Liquidation Spread" as used in this Section shall mean an
amount equal to the product computed by multiplying (i) the excess of (A)
the Liquidation Price per Share over (B) the option or base price per share
of Stock at which the Related Option or SAR is exercisable, by (ii) the
number of Limited Rights being exercised.
(j) Notwithstanding any other provision of the Plan, an SAR may not be
exercised at a time when any Limited Rights held by the holder of such SAR
may be exercised.
(k) Notwithstanding the provisions of Section 7(a) above, if an
Acceleration Date specified in Section 11(a)(i) occurs and if such Date
occurs in connection with a Window Period Situation, then each Optionee who
is a Restricted Reporting Person may exercise his or her Limited Rights
only during the Window Period immediately following the Acceleration Date,
subject to the following exceptions: (i) if the Acceleration Date occurs
during the six-month period following the grant of a Limited Right or the
grant of the Related Option or SAR, whichever is applicable as provided in
the last sentence of Section 7(a) above, then such Limited Right may be
exercised by such Optionee only during the Window Period immediately
following the expiration of such six-month period or, if earlier, following
the death or Disability of such Optionee; and (ii) if such acceleration
Date or the expiration of such six-month period (as applicable) occurs
during a Window Period, such Optionee may exercise such Limited Right
either during the remainder of such Window Period or during the next whole
Window Period thereafter. For the purposes of this paragraph, a "Window
Period Situation" exists (A) if one or more Reporting Persons are the
Person or members of the group constituting the "Person" specified in
Section 11(a)(i) below, or (B) if, by excluding all voting securities
7
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<PAGE>
acquired by the "Person" directly from the Company, no Acceleration Date
would occur. Each Reporting Person specified in clause (A) above, and all
Reporting Persons in the case of a clause (B) Window Period Situation, are
"Restricted Reporting Persons" for the purposes of this paragraph. A
"Window Period" is the period defined from time to time in paragraph
(e)(3)(iii) of Rule 16b-3, or the corresponding paragraph(s) of any
successor to Rule 16b-3.
SECTION 8. STOCK ISSUANCE, PAYMENT, AND WITHHOLDING.
(a) An Optionee may pay the option price of an Option in cash, Stock
(including shares of previously-owned Stock, or Stock issuable in
connection with the Option), or other property, to the extent permitted or
required by the Option Agreement or the Committee from time to time. The
Committee may permit deemed or constructive transfers of shares in lieu of
actual transfer and physical delivery of certificates. Except to the
extent prohibited by applicable law, the Committee or its delegate may take
any necessary or appropriate steps in order to facilitate the payment of
any such purchase price. Without limiting the foregoing, the Committee may
allow the Optionee to defer payment of the option price, or may cause the
Company to loan the option price to the Optionee or to guaranty that any
shares to be issued will be delivered to a broker or lender in order to
allow the Optionee to borrow the purchase price. The Committee may require
satisfaction of any rules or conditions in connection with paying the
Option price at any particular time, in any particular form, or with the
Company's assistance.
(b) When the Optionee's Employer becomes required to collect and pay
Required Withholding Taxes, the Optionee shall promptly reimburse the
Company or Employer (as required by the Committee) for the amount of such
Required Withholding Taxes in cash, unless the Option Agreement or the
Committee permits or requires payment in another form. In the discretion
of the Committee or its delegate and at the Optionee's request, the
Committee or its delegate may cause the Company or Employer to pay
Withholding Taxes in excess of Required Withholding Taxes on behalf of an
Optionee, which shall be reimbursed by the Optionee. The Committee may
allow an Optionee to reimburse the Company or Employer for payment of
Withholding Taxes with shares of Stock or other property. The Committee
may require the satisfaction of any rules or conditions in connection with
any non-cash payment of Withholding Taxes. If an Optionee is a Reporting
Person at the time of grant or during the Option's term and is given an
election to pay any Withholding Taxes with Stock, the Committee shall have
sole discretion to approve or disapprove such election at any time after
the election is made.
(c) If provided in the Option Agreement relating to an ISO, the
Committee may prohibit the transfer by an Optionee of shares of Stock
issued to him or her upon exercise of an ISO into the name of a nominee,
and the Committee may require the placement of a legend on certificates for
such shares reflecting such prohibition.
SECTION 9. FORFEITURES.
(a) If any Optionee voluntarily terminates employment within two
years of the grant of an Option or SAR, or is dismissed from employment at
any time for any reason, such Option or SAR shall immediately terminate and
be forfeited to the extent not previously exercised.
8
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<PAGE>
(b) Notwithstanding any other provision in this Plan except paragraph
(c) below, the receipt of any Option or SAR, and the receipt of any share
of Stock, cash, or other benefit in connection with such Option or SAR,
shall be subject to the following provisions:
(i) At all times during his or her employment with the Company or a
Subsidiary or Affiliate, the Optionee shall continuously satisfy his or
her duties of loyalty and faithful service to the Company and his or
her Employer and shall refrain from engaging in any undisclosed
conflict of interest or from otherwise acting in any manner inimical to
or contrary to the best interests of the Company
or Employer. Any violation of law or of any Company or Employer policy
or the Business Practices and Ethics Manual (or any manual, or portion
thereof, which replaces such Manual) of the Company shall be considered
conduct inimical to or contrary to the best interests of the Company
and Employer for the purposes of this Section 9(b). The exercise of
any Option or SAR, or the acceptance of any share of stock, cash, or
other benefit hereunder in connection with any Option or SAR shall be
deemed to be the certification by the Optionee that he or she has
satisfied this condition. In addition, the Optionee shall furnish to
the Committee on request any other information concerning satisfaction
of such condition which the Committee may request.
(ii) This Section 9(b) is intended to establish, as a condition to
the realization of economic benefits under the Plan, a standard of
conduct consistent with (A) the duties of loyalty and faithful
performance of services imposed on an employee by the common law, and
(B) the Company's and Employer's published standards and policies which
the Optionee is bound to observe. This Section 9(b) shall in no way
impair or derogate from the rights or remedies which the Company or
Employer may have at law or in equity or under any employment
contract or agreement with an Optionee to prevent or to recover damages
for the disclosure of trade secrets, or to recover any restitution or
damages properly owing the Company or Employer because of any theft,
fraud, embezzlement, or other illegal conduct on the part of an
Optionee.
(iii) If the Committee determines that an Optionee has not observed
the standard of conduct required by this Section 9(b), the Committee
may require the Optionee to forfeit any right to or in any outstanding
Option or SAR, as of the date such determination is made, and may
require repayment of any Stock or cash received in connection with any
Option or SAR by such Optionee after the act or acts of misconduct
which gave rise to the Committee's determination.
(iv) This Section 9(b) shall not be interpreted as requiring the
Committee to take action in each and every instance of suspected
misconduct, and in determining to attempt to enforce the forfeiture and
repayment provisions of this Section 9(b), the Committee may consider,
among other things, the nature of the misconduct, its seriousness, the
impact on the Company, the possible economic effects, the circumstances
surrounding the discontinuance of the Optionee's employment with the
Employer, and the amount of proof which the Employer may
have of any alleged misconduct. Any decision by the Committee to
forego enforcement of this Section 9(b) in whole or in part in any
9
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<PAGE>
particular instance shall in no way constitute a waiver of the right to
enforce such Section in any other instance.
(v) During the period of any investigation into whether an Optionee
has engaged in conduct prohibited by this Section 9(b), the Optionee's
rights to receive delivery of any Stock or cash, or to have any
transfer of Stock recognized on the stock books of the Company, shall
be suspended. An Optionee may exercise Options or SARs subject to the
prior sentence.
(c) The Committee may include in an Option Agreement such provisions as
it shall deem appropriate, in its discretion, to deter competition with the
Company, a Subsidiary or an Affiliate, including provisions pertaining to
the refund of any economic benefit received by an Optionee from exercising
an Option. In addition, the Committee may waive, in whole or part, and for
any reason the Committee deems appropriate, any termination of an Option or
group of Options caused by this Section 9.
(d) The provisions of this Section 9 shall terminate upon the
occurrence of an Acceleration Date described in Section 11.
SECTION 10. ADJUSTMENTS AND ACQUISITIONS.
(a) In the event of (i) any change in the outstanding shares of Stock
by reason of any stock split, combination of shares, stock dividend,
reorganization, merger, consolidation, or other corporate change having a
similar effect, (ii) any separation of the Company including a spin-off or
other distribution of stock or property by the Company, or (iii) any
distribution to stockholders generally other than a normal dividend, the
Committee shall make such equitable adjustments to the Plan and to
outstanding Options, SARs and Limited Rights as it shall deem appropriate
in order to prevent the dilution or enlargement of (a) the Options, SARs
and Limited Rights which may be granted, the shares of Stock which may be
issued, or the shares for which ISOs may be granted under the Plan, (b) the
economic value of outstanding Options, SARs and Limited Rights or (c) the
limitations imposed by Section 3(d) of this Plan, provided, however, that
the Committee shall not make any adjustment which would constitute or
result in an increase in the aggregate number of Shares available under the
Plan, or the annual limit on the number of options which may be granted to
an Eligible Employee under Section 3(d) of this Plan, requiring shareholder
approval under Section 422 or Section 162(m) of the Code. Any such
determination by the Committee shall be conclusive and binding on all
concerned.
(b) In the event the Company or a Subsidiary enters into a transaction
described in Section 424(a) of the Code with any other corporation, the
Committee may grant Options, SARs, or Limited Rights to employees or former
employees of such corporation in substitution of stock options, stock
appreciation rights or limited stock appreciation rights previously granted
to them by such corporation upon such terms and conditions as shall be
necessary to qualify such grant as a substitution described in Section
424(a) of the Code.
SECTION 11. ACCELERATION.
(a) If, while unexercisable Options or SARs remain outstanding under
the Plan,
(i) any Person (as defined herein) becomes the beneficial owner
directly or indirectly (within the meaning of Rule 13d-3 under the Act)
10
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<PAGE>
of more than 50% of the Company's then outstanding voting securities
(measured on the basis of voting power);
(ii) the shareholders of the Company approve a definitive agreement
to merge or consolidate the Company with any other corporation, other
than an agreement providing for (x) a merger or consolidation which
would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity), in combination with the ownership of any trustee or
other fiduciary holding securities under an employee benefit plan of
the Company, at least 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or (y) a merger or
consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no Person acquires more than 50% of
the combined voting power of the Company's then outstanding securities;
(iii) a change occurs in the composition of the Board of Directors
during any period of twenty-four consecutive months such that
individuals who at the beginning of such period were members of the
Board of Directors cease for any reason to constitute at least a
majority thereof, unless the election, or the nomination for election
by the Company's shareholders, of each new director was approved by a
vote of at least two-thirds of the directors then still in office who
either were directors at the beginning of the period or whose election
or nomination for election was previously so approved; or
(iv) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all the Company's assets,
then on the date as of which any of the events described in clauses (i)
through (iv) occurs (such date being referred to as an "Acceleration
Date"), each Option and SAR automatically shall become exercisable.
For purposes of this paragraph, "Person" shall have the meaning given in
Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d)
and 14(d) thereof; however, a Person shall not include (aa) the Company or
any of its subsidiaries, (bb) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of its
subsidiaries, (cc) an underwriter temporarily holding securities pursuant
to an offering of such securities, or (dd) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of Stock.
(b) Except to the extent prohibited by Rule 16b-3 in the case of
Reporting Persons, the Committee may accelerate the date on which any
Options and SARs become exercisable and may remove any restrictions on such
Options or SAR at any time after grant and for any reason the Committee
deems appropriate.
(c) All Options and SARs shall automatically become exercisable upon a
termination of employment caused by the death or Disability of the
Optionee.
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SECTION 12. ADMINISTRATION.
(a) The Plan shall be administered by a Stock Option Committee
appointed by the Board consisting of three or more persons, each of whom at
all times shall be a member of the Board, a disinterested person as
defined in Rule 16b-3 and an outside director within the meaning of
Section 162(m)(4)(C)(i) of the Code. Committee members shall not be
eligible for selection to receive Options or SARs under the Plan. The
initial Committee shall consist of the members of the "Stock Option
Committee" administering the Anheuser-Busch 1981 Non-Qualified Stock Option
Plan at the time this Plan is adopted by the Board.
(b) A majority of the members of the Committee shall constitute a
quorum. The acts of a majority of the members present at any meeting at
which a quorum is present, or acts approved in writing by a majority of the
members of the Committee, shall be the acts of the Committee. From time to
time the Committee may adopt, amend, and rescind such rules and regulations
for carrying out the Plan and implementing Option Agreements, and the
Committee may take such action in the administration of the Plan, as it
deems proper. The interpretation of any provisions of the Plan by the
Committee shall be final and conclusive unless otherwise determined by the
Board.
SECTION 13. AMENDMENT, TERMINATION, SHAREHOLDER APPROVAL.
(a) The Board may amend or terminate the Plan at any time, except that
without the approval of the Company's shareholders, no amendment shall (i)
increase the maximum number of shares issuable, or the maximum number of
shares for which ISOs may be granted, under the Plan, (ii) change the class
of persons eligible to be Optionees, (iii) change the annual limit on
options which may be granted to an Eligible Employee provided in Section
3(d) or (iv) change the provisions of this Section 13(a).
(b) The Committee may amend the Plan from time to time to the extent
necessary to (i) comply with Rule 16b-3 and (ii) prevent benefits under the
Plan from constituting "applicable employee remuneration" within the
meaning of Section 162(m) of the Code.
(c) No Options or SARs may be granted under the Plan after September
26, 1999.
(d) Notwithstanding any other provision of the Plan, no Option or SAR
granted under the Plan on or after December 15, 1993 may be exercised
unless and until either (i) the amendment to the Plan adopted by the Board
on December 15, 1993 which added Section 3(d) to this Plan is approved by
the Company's shareholders within twelve months of such adoption, or (ii)
if earlier, the Company receives an opinion of counsel or other evidence
satisfactory to it that such shareholder approval is not required by the
Code in order to prevent benefits under the Plan from constituting
"applicable employee remuneration" within the meaning of Section 162(m) of
the Code.
(e) The approval by shareholders described in this Section shall
consist of the approving vote of the holders of a majority of the
outstanding shares of Stock present (in person or by proxy) at a meeting of
the shareholders at which a quorum is present, unless a greater vote is
required by the Company's charter or by-laws or by applicable law.
SECTION 14. ADDITIONAL PAYMENTS.
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The Committee may grant an Optionee the right to receive additional
compensation in cash or other property (in addition to any cash or other
property payable under the terms of the Option or SAR itself) upon an
Option or SAR becoming exercisable or being exercised provided that (i) in
the case of an ISO such compensation is includible in income under Sections
61 and 83 of the Code at the time of such exercise and (ii) no such right
may be granted in connection with any SAR or Limited Right which is an
alternative to an ISO.
SECTION 15. MISCELLANEOUS.
(a) Each provision of the Plan and each Option Agreement relating to an
ISO shall be construed so that each ISO shall be an incentive stock option
as defined in Section 422 of the Code or any statutory provision that may
replace Section 422, and any provisions thereof which cannot be so
construed shall be disregarded. Except as provided in Section 9, no
discretion granted or allowed to the Committee under the Plan shall apply
to an ISO after its grant except to the extent the Option Agreement with
respect to the ISO grant shall so provide. Notwithstanding the foregoing,
nothing shall prohibit an amendment to an Option Agreement with respect to
an ISO which would change its status to an NQSO, so long as the Company and
the Optionee shall consent to such amendment.
(b) Without amending the Plan, Options and SARs may be granted to
Eligible Employees who are foreign nationals or who are employed outside
the United States or both, on such terms and conditions different from
those specified in the Plan as may, in the judgment of the Committee, be
necessary or desirable to further the purposes of the Plan. Such different
terms and conditions may be reflected in Addenda to the Plan. However,
in the case of an ISO, no such different terms or conditions shall be
employed if such term or condition constitutes, or in effect results in, an
increase in the aggregate number of shares which may be issued under the
Plan or a change in the definition of Eligible Employee.
(c) Notwithstanding any other provision in the Plan, the Committee
shall not act with respect to any Reporting Person in a manner which would
contravene any requirement of Rule 16b-3 as in effect at the time of such
action.
(d) Amendments to this Plan which were adopted by the Board on December
15, 1993 shall not apply to Options granted prior to that date except for
(i) the definition of "Required Withholding Tax" now contained in Section
2(w) and (ii) the amendment adding the express authority for beneficiary
designations which is contained in Section 5(e).
13
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.5
<SEQUENCE>6
<FILENAME>exh10p5.txt
<DESCRIPTION>INCENTIVE STOCK PLAN AS RESTATED
<TEXT>
<PAGE>
Exhibit 10.5
ANHEUSER-BUSCH COMPANIES, INC.
1998 INCENTIVE STOCK PLAN
(RESTATED TO REFLECT A 2-FOR-1 STOCK SPLIT EFFECTIVE
SEPTEMBER 18, 2000, AND AMENDMENTS EFFECTIVE
APRIL 25, 2001 AND APRIL 23, 2003)
SECTION 1. PURPOSE.
The purpose of this Plan is to attract, retain, motivate and reward
employees of the Company and its Subsidiaries and Affiliates with certain
stock-related compensation arrangements.
SECTION 2. MAXIMUM NUMBER OF SHARES.
(a) The maximum number of shares of Stock which may be issued
pursuant to Awards under this Plan, and the maximum number of shares for
which ISOs may be granted under this Plan, shall be 88,000,000 shares,
subject to adjustment as provided in Section 10. Of such shares, no more
than 1,500,000 shares of Restricted Stock may be granted under this Plan,
subject to adjustment as provided in Section 10. For this purpose:
(i) The number of shares underlying an Award shall be counted
against this Plan maximum ("used") at the time of grant.
(ii) When an Award is payable in cash only, the number of shares
of Stock on which the amount of such cash is based shall be deemed
used at the time of grant.
(iii) Shares which underlie Awards that (in whole or part)
expire, terminate, are forfeited, or otherwise become non-payable,
and shares which are recaptured by the Company in connection with a
forfeiture, may be re-used in new grants to the extent of such
expiration, termination, forfeiture, non-payability, or recapture.
(iv) For all purposes of this Section 2, shares underlying two
or more alternative Awards shall be treated as underlying only a
single Award, with no multiple counting of shares. Accordingly: shares
underlying alternative Awards shall be used only once at the time of
grant; and, if one such Award is exercised or (in the case of
Restricted Stock) vests, no re-usage of shares shall result from the
termination of the unexercised or unvested alternative Awards.
(b) Notwithstanding any other provisions of this Plan: (i) the
maximum number of shares underlying Awards (other than Restricted Stock)
that may be granted to any Eligible Person during any calendar year shall be
1,500,000, subject to adjustment as provided in Section 10; and (ii) the
maximum number of shares of Restricted Stock that may be granted to any
Eligible Person during any calendar year shall be 375,000, subject to
adjustment as provided in Section 10.
(c) In its discretion, the Company may issue treasury shares or
authorized but unissued shares, but shall issue treasury shares to the
extent required by the Committee or applicable law. Shares of Stock may be
represented by certificates or may be issued in uncertificated form, as
determined by the Company from time to time.
- 1 -
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<PAGE>
SECTION 3. ELIGIBILITY.
Officers and management employees of the Company, Subsidiaries, or
Affiliates shall be eligible to receive Awards under this Plan. A director
of the Company, a Subsidiary, or an Affiliate shall be eligible only if he
or she also is an officer or management employee of at least one such
entity. Notwithstanding the foregoing, persons employed only by Affiliates
shall not be eligible to receive ISOs.
SECTION 4. GENERAL PROVISIONS RELATING TO AWARDS.
(a) Subject to the limitations in this Plan, the Committee may cause
the Company to grant Awards to such Eligible Persons, at such times, of such
types, in such amounts, for such periods, becoming exercisable or otherwise
vesting at such times, with such features, with such option prices, purchase
prices or base prices, and subject to such other terms, conditions, and
restrictions as the Committee deems appropriate. Each Award shall be
evidenced by a written Award Document, which (as determined by the
Committee) may be a formal agreement between the Company and the Recipient
or a communication by the Company to the Recipient. The Award Document may
be written and transmitted on paper, electronically, or using any other
medium selected by the Committee, and may be set forth in a single document
or in several documents. In granting an Award, the Committee may take into
account any factor it deems appropriate and consistent with the purposes of
this Plan. Awards may be granted as additional compensation, or in lieu of
other compensation. The payment or issuance of any cash or shares of Stock
to a Recipient, and the vesting or delivery of any shares of Restricted
Stock, may be deferred to a later date if and as provided in the Award
Document. Deferrals may be for such periods and upon such terms and
conditions (including the provision of interest equivalents, dividends or
dividend equivalents, or other return) as the Committee may determine.
(b) Except as otherwise provided in this Plan, one or more Awards may
be granted separately or as alternatives to each other. If Awards are
alternatives to each other:
(i) the exercise of all or part of one automatically shall
cause an immediate equal and corresponding termination of the other;
(ii) if one of the alternative Awards is Restricted Stock, the
vesting of all or part of such Stock shall cause an immediate equal
and corresponding termination of the other Award; and
(iii) unless the Award Document or the Committee expressly
permit otherwise, alternative Awards which are transferable may be
transferred only as a unit, and alternative Awards which are
exercisable must be exercisable by the same person or persons.
(c) Award Documents may contain any provision approved by the
Committee relating to the period for exercise or vesting after termination
of employment, and relating to the circumstances under which a termination
is deemed to occur. Except to the extent otherwise expressly provided in the
Award Document or determined by the Committee, termination of employment
includes the separation of a Recipient, directly or through the separation
of his or her Employer, from the group of companies comprised of the Company
and its Subsidiaries and Affiliates for any reason, including: (i)
separation of the Recipient by reason of death, permanent or indefinite
disability, retirement, resignation, dismissal, permanent or indefinite
layoff, or other event having a similar
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effect; and (ii) separation of the Employer by any method which results in
the Employer ceasing to be a Subsidiary or an Affiliate.
(d) Award Documents may, in the discretion of the Committee, contain
a provision permitting a Recipient to designate the person who may exercise
an Award after the Recipient's death, either by will or by appropriate
notice to the Company. The Committee may impose such conditions and
limitations on such designations as it deems appropriate.
(e) A Recipient shall have none of the rights of a shareholder with
respect to shares of Stock which underlie his or her Award until shares are
issued in his or her name.
(f) Except as otherwise provided in an Award Document pursuant to
this Section, Awards shall not be transferable other than by will or the
laws of descent and distribution, and shall be exercisable during the
Recipient's lifetime only by the Recipient or his or her guardian or legal
representative. However, except in the case of ISOs and Awards which are
alternatives to ISOs, the Committee may expressly provide in any Award
Document that the Award is transferable. Transferability (if permitted) may
be subject to such conditions and limitations as the Committee deems
appropriate.
(g) Notwithstanding Section 15(a), in its discretion the Committee
may provide in any Award Document for the acceleration of vesting or the
termination of any condition, restriction, or forfeiture provision upon the
happening of any specified event (including, for example, an event which
results in an Acceleration Date).
(h) Subject to Section 15(a) in the case of ISOs, and subject to any
express limitations contained in the applicable Award Document: (i) the
Committee may accelerate vesting or waive or terminate any condition,
restriction, or forfeiture provision of any Award at any time and for any
reason; and (ii) the Committee may amend an Award Document after grant at
any time and for any reason so long as such amendment is not inconsistent
with this Plan.
(i) No exercisable Award by its terms shall be exercisable after the
expiration of ten years from the date it is granted.
SECTION 5. OPTIONS AND SARS.
(a) Except as provided in Section 10, the option price per share of
Options or the base price of SARs shall not be less than Fair Market Value
per share of Stock on the Options' or the SARs' grant date, except that SARs
which are alternatives to Options but which are granted at a later time may
have a base price equal to the option price even though the base price is
less than Fair Market Value on the date the SARs are granted.
(b) The grant of Options and their related Award Document must
identify the Options either as ISOs or as NQSOs.
(c) If Options, SARs, and/or Limited Rights are granted as
alternatives to each other, the option prices and the base prices (as
applicable) shall be equal and the expiration dates shall be the same.
(d) In the case of SARs, the Award Document may specify the form of
payment or may provide that the form is to be determined at a later date,
and may require the satisfaction of any rules or conditions in connection
with receiving payment in any particular form.
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(e) Notwithstanding any other provision of Sections 4 or 5: (i) no
Options or SARs shall be granted in exchange for so-called "underwater"
Options or SARs (which have option or base prices in excess of the
then-current Fair Market Value per share of Stock), nor shall underwater
Options or SARs be amended to reduce their option or base price; and, (ii)
no Options or SARs shall contain a so-called "reload" feature under which
additional Options or SARs are granted automatically to Recipients upon
exercise of the original Options or SARs.
SECTION 6. LIMITED RIGHTS.
(a) The Committee shall have authority to grant a special type of
stock appreciation rights ("Limited Rights") to any Recipient of any Options
or SARs granted under this Plan (the "Related Award"). Limited Rights are
stock appreciation rights which are exercisable only after the occurrence of
one or more extraordinary events specified by the Committee; such events may
include, for example, the events which result in an Acceleration Date.
Limited Rights shall not be granted separately, but shall be granted only as
alternatives to their Related Award. Limited Rights may be granted either at
the time of grant of the Related Award or at any time thereafter during its
term. Limited Rights shall be exercisable or payable at such times, payable
in such amounts, and subject to such other terms, conditions, and
restrictions as the Committee deems appropriate.
(b) The Committee shall place on any Limited Rights for which the
Related Awards are ISOs such restrictions as may be required by the Code at
the time of grant, and shall amend this Plan accordingly to the extent
required by the Code.
SECTION 7. RESTRICTED STOCK.
(a) "Restricted Stock" means Stock issued to a Recipient which is
nontransferable and is subject to forfeiture upon the happening of such
events or conditions, or upon the failure to satisfy such requirements or
conditions, as the Committee specifies in the Award Document or otherwise.
Stock issued upon the exercise of Options or SARs is not "Restricted Stock"
for purposes of this Plan, even if subject to post-issuance transfer
restrictions or forfeiture conditions. When Restricted Stock vests, it
ceases to be "Restricted Stock" for purposes of this Plan.
(b) The certificate representing shares of Restricted Stock issued in
the name of a Recipient may be held by the Company and/or may have a legend
placed upon it to the effect that the shares represented by it are subject
to, and may not be transferred except in accordance with, this Plan and the
related Award Document. Cash dividends relating to shares of Restricted
Stock may be paid to the Recipient or held by the Company for the
Recipient's benefit, and if held may be made subject to the transfer
restrictions, forfeiture risks, and vesting conditions of the Restricted
Stock, as the Committee may provide in the Award Document or otherwise; if
dividends are held by the Company, the Committee may require that the
Company provide for interest equivalents or other return on any cash
dividends at such rate(s) and time(s) as the Committee provides in the Award
Document or otherwise. Any Stock or other securities issuable in respect of
Restricted Stock pursuant to an event specified in Section 10(a) of this
Plan shall be subject to the Award Document related to such Restricted Stock
and all of the transfer restrictions, forfeiture risks, and vesting
conditions pertaining thereto.
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SECTION 8. STOCK ISSUANCE, PAYMENT, AND WITHHOLDING.
(a) The Recipient of Options may pay the option price in cash, Stock
(including shares of previously-owned Stock or Stock issuable in connection
with the Award, but not including shares of Restricted Stock), or other
property, to the extent permitted or required by the Award Document or the
Committee from time to time.
(b) Except to the extent prohibited by applicable law, the Committee
or the Company may take any necessary or appropriate steps in order to
facilitate the payment of an option price. The Committee may permit deemed
or constructive transfers of shares in lieu of actual transfer and physical
delivery of certificates. The Committee may require satisfaction of any
rules or conditions in connection with paying the option price at any
particular time or in any particular form.
(c) If shares used to pay the option price of Options are subject to
any transfer or other restrictions, an equal number of the shares of Stock
purchased shall be made subject to such prior restrictions in addition to
any further restrictions imposed on such purchased shares by the terms of
the Award Document or Plan.
(d) After the obligation arises to collect and pay Required
Withholding Taxes, the Recipient shall reimburse the Company or Employer (as
required by the Committee or Company) for the amount of such Required
Withholding Taxes in cash, unless the Award Document or the Committee
permits or requires payment in another form. In the discretion of the
Committee or its delegate and at the Recipient's request, the Committee or
its delegate may cause the Company or Employer to pay to the appropriate
taxing authority withholding taxes in excess of Required Withholding Taxes
on behalf of a Recipient, which shall be reimbursed by the Recipient in any
manner determined by the Company or the Committee from time to time. In the
Award Document or otherwise, the Committee may allow a Recipient to
reimburse the Company or Employer for payment of withholding taxes with
shares of Stock or other property. The Committee may require the
satisfaction of any rules or conditions in connection with any non-cash
payment of withholding taxes.
(e) If provided in the Award Document relating to an ISO, the
Committee may (i) cause the Company to hold the shares of Stock issued in
the Recipient's name upon exercise, or (ii) prohibit the transfer by a
Recipient of such shares into the name of a nominee and require the
placement of a legend on certificates for such shares reflecting such
prohibition.
SECTION 9. FORFEITURES.
In its discretion, the Committee may adopt and amend any policies,
and may include in any Award Document any provisions relating to,
forfeitures. Such forfeiture provisions may include, for example,
prohibitions on competing with the Company and its Subsidiaries and
Affiliates and on engaging in other detrimental conduct. Forfeiture
provisions for one Award type may differ from those for another type, and
also may differ among Awards of the same type granted at different times or
to Recipients in different circumstances. As used in this Plan, a
"forfeiture" of an Award includes the recapture of Stock issued or other
economic benefits derived from an Award, as well as the forfeiture of an
Award itself; however, the Committee may define the term more narrowly for
specific Award Documents.
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SECTION 10. ADJUSTMENTS AND ACQUISITIONS.
(a) Subject to Section 10(c), in the event that the Committee shall
determine that, as a result of any dividend or other distribution (whether
in the form of cash, Stock, other securities, or other property), stock
split, reverse stock split, recapitalization, reorganization, merger,
consolidation, split-up, split-off, spin-off, combination, repurchase, or
exchange of Stock or other securities of the Company, issuance of warrants
or other rights to purchase Stock or other securities of the Company, or any
other similar corporate transaction, change, or event, an adjustment is
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under outstanding Awards or
under the Plan (an "Adjustment Event"), then the Committee shall, in such
manner as it may deem equitable, adjust any or all of:
(i) the number and types of shares of Stock (or other
securities or property) subject to outstanding Awards;
(ii) the limitations on grants of Awards, ISOs, and Restricted
Stock set forth in Section 2(a) of this Plan, and the limitations on
grants to any Eligible Person during any calendar year set forth in
Sections 2(b)(i) and 2(b)(ii) of this Plan (collectively the "Share
Limitations"); and
(iii) the option price, base price, or other similar price with
respect to any Award.
Alternatively to (i) and (iii), if there is an Adjustment Event and the
Committee deems it appropriate, it may provide for cash payments to holders
of outstanding Awards.
(b) Subject to Section 10(c), in the event of an acquisition by the
Company by means of a merger, consolidation, acquisition of property or
stock, reorganization or otherwise, the Committee shall be authorized:
(i) to cause the Company to issue Awards or assume stock
options, stock appreciation rights, or restricted stock issued by the
acquired company, whether or not in a transaction to which Section
424(a) of the Code applies, by means of issuance of new Awards in
substitution for, or an assumption of, previously issued options,
rights, or restricted stock, but only if and to the extent that such
issuance or assumption is consistent with the other provisions of
this Plan and any applicable law, and/or
(ii) to increase the Share Limitations to reflect such issuance
or assumption.
(c) The Committee shall not make an adjustment under Section 10(a),
issue Awards or assume options, rights, or restricted stock under
Section 10(b)(i), or increase the Share Limitations under Section 10(b)(ii),
(i) to the extent such action would affect ISOs or the Share
Limitation relating to ISOs and would require shareholder approval
under Section 422 of the Code, or
(ii) to the extent such action would affect the Share Limitation
set forth in Section 2(b) of this Plan and would require shareholder
approval in order to qualify such Awards, such assumed options,
rights, or restricted stock, or Awards granted thereafter as
performance-based compensation under Section 162(m) of the Code,
unless such action(s) by the Committee are made subject to shareholder
approval and are so approved by the shareholders.
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(d) In the event that the Board approves any merger or consolidation
of the Company with or into any other corporation or business entity as a
result of which the Company shall not be the surviving corporation, with
respect to each Award, either (i) the Committee shall, in such manner as it
may deem equitable, cause such Award to vest prior to the effective date of
such merger or consolidation or (ii) the Committee or the Board shall
approve arrangements to substitute an award issued by the surviving
corporation for such Award on terms and conditions deemed equitable by the
Committee or the Board.
SECTION 11. ACCELERATION AND VESTING.
(a) An "Acceleration Date" occurs when any of the following events
occur:
(i) any Person (as defined herein) becomes the beneficial owner
directly or indirectly (within the meaning of Rule 13d-3 under the
Act) of more than 30% of the Company's then outstanding voting
securities (measured on the basis of voting power);
(ii) the shareholders of the Company approve a definitive
agreement of merger or consolidation with any other corporation or
business entity, other than a merger or consolidation that would
result in the voting securities of the Company outstanding
immediately prior to the consummation of the merger or consolidation
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least
50% of the combined voting power of the voting securities of the
surviving entity of such merger or consolidation outstanding
immediately after such merger or consolidation;
(iii) Continuing Directors cease to constitute at least a
majority of the directors of the Company; or
(iv) the shareholders of the Company approve a plan of complete
liquidation or dissolution of the Company or an agreement for the
sale or disposition by the Company of all or substantially all the
Company's assets.
An Acceleration Date as described in (i) above shall not occur as a
result of the ownership of voting securities by (A) the Company or any of
its Subsidiaries, (B) a trustee or other fiduciary holding securities under
an employee benefit plan of the Company or any of its Subsidiaries or (C) a
corporation owned, directly or indirectly, by the shareholders of the
Company in substantially the same proportions as their ownership of Stock.
Securities held by an underwriter pursuant to an offering of such securities
for a period not to exceed 40 days shall be deemed to be outstanding but
shall not be deemed to be beneficially owned by such underwriter for
purposes of clause (i) above.
For purposes of this Section 11(a), (X) "Affiliate" and "Associate"
shall have the respective meanings ascribed to such terms in Rule 12b-2
under the Act; (Y) "Continuing Directors" shall mean any directors of the
Company who either (i) were directors of the Company on the date of adoption
of the Plan, or (ii) became directors of the Company subsequent to such date
and whose election or nomination for election by the shareholders of the
Company was duly approved, either by a specific vote or by approval of the
proxy statement issued by the Company in which such individuals were named
as nominees for director of the Company, by a majority of the Continuing
Directors who were at the time of election or nomination directors of the
Company; and (Z) "Person" shall mean any individual, firm, corporation,
partnership or other entity and shall include the Affiliates and Associates
of such Person.
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(b) If an Acceleration Date occurs while Awards remain outstanding
under this Plan, then all Awards shall vest. This Section shall apply to
ISOs notwithstanding Section 15(a).
(c) When Awards (other than Restricted Stock) "vest," they become
fully exercisable. Vesting does not mean that such an Award becomes
non-forfeitable, except to the extent provided in the Award Document or
otherwise by the Committee pursuant to Sections 4(g) or 4(h) above. When
shares of Restricted Stock "vest," they become non-forfeitable (except for
any forfeiture conditions which this Plan or the Award Document expressly
provides shall survive vesting) and freely transferable (except for any
legal restrictions imposed on transfers by the Securities Act of 1933, as
amended, or other applicable securities laws).
SECTION 12. ADMINISTRATION.
(a) This Plan shall be administered by the Stock Option Plans
Committee of the Board, or another committee appointed by the Board from
time to time, consisting of three or more persons, each of whom at all times
shall be a member of the Board and none of whom shall be an officer or
employee of the Company or any of its Subsidiaries at the time of service.
Committee members shall not be eligible for selection to receive Awards
under this Plan.
(b) During any time when one or more Committee members may not be
qualified to serve under Rule 16b-3, under Section 162(m) of the Code, or
under any other rule or law which contains special qualifications for
Committee members in order to avoid a penalty or to obtain a benefit, the
Committee may form a sub-Committee from among its qualifying members. The
sub-Committee may act, in lieu of the full Committee, with respect to all or
any category of Awards granted or to be granted to all or any group of
Recipients, and may take other actions deemed appropriate and convenient to
prevent, control, minimize, or eliminate any penalties, loss of benefits, or
other adverse effects of such potential disqualification. Any such
sub-Committee shall have the full authority of the full Committee under this
Plan, except to the extent the full Committee limits the sub-Committee's
powers.
(c) At the Committee's request or on its own motion, the Board may
ratify or approve grants, or any terms of any grants, made by the Committee
during any time that any member of the Committee may not be qualified to
approve such grants or terms under Rule 16b-3 or any other rule or law.
(d) A majority of the members of the Committee shall constitute a
quorum. The acts of a majority of the members present at any meeting at
which a quorum is present, or acts approved in writing by all of the members
of the Committee, shall be the acts of the Committee. The Committee may meet
in person, by telephone or television conference, or in any other manner
(unless prohibited by applicable law). From time to time the Committee may
adopt, amend, and rescind such rules and regulations for carrying out this
Plan and implementing Award Documents, and the Committee may take such
action in the administration of this Plan, as it deems proper. The
interpretation of any provisions of this Plan by the Committee shall be
final and conclusive unless otherwise determined by the Board.
(e) To the extent the Committee deems it convenient and appropriate,
the Committee may delegate such of its powers and duties, including (among
other things) its power to grant Awards, to one or more officers of the
Company. Any such delegation shall be subject to such limitations and
conditions as the Committee deems appropriate. However, notwithstanding the
foregoing: (i) the power to grant Awards may not be delegated to an officer
who is not also a director of the Company
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except in conformity with applicable Delaware law; and, (ii) no officer may
grant Awards to him- or herself or to his or her superiors unless such
grants are ratified by the Committee or the Board.
SECTION 13. AMENDMENT, TERMINATION, SHAREHOLDER APPROVAL.
(a) The Board may amend or terminate this Plan at any time, except
that without the approval of the Company's shareholders, no amendment shall
(i) increase the maximum number of shares issuable, or the maximum number of
shares for which ISOs may be granted, under this Plan, (ii) change the class
of persons eligible to receive ISOs, (iii) change the annual limit on Awards
which may be granted to an Eligible Person provided in Section 2(b), or (iv)
change the provisions of this Section 13(a).
(b) The Committee may amend this Plan from time to time to the extent
necessary to (i) comply with Rule 16b-3 and, to the extent it deems
appropriate, (ii) prevent benefits under this Plan from constituting
"applicable employee remuneration" within the meaning of Section 162(m) of
the Code.
(c) No Awards may be granted under this Plan after April 21, 2008.
(d) The approval by shareholders shall consist of the approving vote
of the holders of a majority of the outstanding shares of Stock present (in
person or by proxy) and voted (for or against) at a meeting of the
shareholders at which a quorum is present, unless a greater vote is required
by the Company's charter or by-laws, by the Board, by the Company's
principal stock exchange, or by applicable law (including Delaware law, Rule
16b-3, or Section 162(m) of the Code).
SECTION 14. DEFINITIONS.
(a) "Acceleration Date" has the meaning given in Section 11(a).
(b) "Act" means the Securities Exchange Act of 1934, as amended from
time to time.
(c) "Adjustment Event" has the meaning given in Section 10(a).
(d) "Affiliate" means any entity in which the Company has a
substantial direct or indirect equity interest (other than a Subsidiary),
but only if expressly so designated by the Committee from time to time.
Without limiting the generality of the foregoing, the term "Affiliate" shall
not include any beer wholesaler or distributor in which Anheuser-Busch
Investment Capital Corporation or other Subsidiary invests, unless the
Committee expressly determines otherwise; the committee may also revoke or
reinstate any such designation from time-to-time.
(e) "Award" means a grant of ISOs, NQSOs, SARs, Limited Rights, or
Restricted Stock.
(f) "Award Document" means the written agreement or other document
referred to in Section 4(a) evidencing an Award.
(g) "Board" means the Board of Directors of the Company.
(h) Options "cease to qualify as ISOs" when they fail or cease to
qualify for the exclusion from income provided in Section 421 (or any
successor provision) of the Code.
(i) "Code" means the U.S. Internal Revenue Code as in effect from
time to time.
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(j) "Committee" means the committee of the Board described in Section
12 hereof and any sub-committee established by such committee pursuant to
Section 12(b).
(k) "Company" means Anheuser-Busch Companies, Inc. and its
successors.
(l) "Eligible Person" means a person who is eligible to receive an
Award under Section 3 of this Plan.
(m) "Employer" means the Company, the Subsidiary, or the Affiliate
which employs the Recipient.
(n) "Fair Market Value" of Stock on a given valuation date means (i)
the average of the highest and lowest selling prices per share of Stock
reported on the New York Stock Exchange Composite Tape or similar quotation
service for such date, (ii) if Stock is not listed on the New York Stock
Exchange, the average of the highest and lowest selling prices per share of
Stock as reported for such valuation date on the principal stock exchange or
quotation system in the U.S. on which Stock is listed or quoted (as
determined by the Committee), or (iii) if neither of the preceding clauses
is applicable, the value per share determined by the Committee in a manner
consistent with the Treasury Regulations under Section 2031 of the Code. If
no sale of Stock occurs on such valuation date, but there were sales
reported within a reasonable period both before and after such valuation
date, the weighted average of the means between the highest and lowest
selling prices on the nearest date before and the nearest date after such
valuation date shall be used, with the average to be weighted inversely by
the respective numbers of trading days between the selling dates and such
valuation date.
(o) "Forfeiture" has the meaning given in Section 9.
(p) "ISO" or "Incentive Stock Option" means an option to purchase one
share of Stock for a specified option price which is designated by the
Committee as an "Incentive Stock Option" and which qualifies as an
"incentive stock option" under Section 422 (or any successor provision) of
the Code.
(q) "Limited Right" has the meaning given in Section 6.
(r) "NQSO" or "Non-Qualified Stock Option" means an option to
purchase one share of Stock for a specified option price which is designated
by the Committee as a "Non-Qualified Stock Option," or which is designated
by the Committee as an ISO but which ceases to qualify as an ISO.
(s) "Option" means an ISO or an NQSO.
(t) "Optionee" means a person to whom Options are granted pursuant to
this Plan.
(u) "Plan" means the Anheuser-Busch Companies, Inc. 1998 Incentive
Stock Plan, as amended from time to time.
(v) "Recipient" means an Eligible Person to whom an Award is granted
pursuant to this Plan.
(w) "Reporting Person," as of a given date, means a Recipient who
would be required to report a purchase or sale of Stock occurring on such
date to the Securities and Exchange Commission pursuant to Section 16(a) of
the Act and the rules and regulations thereunder.
(x) "Restricted Stock" has the meaning given in Section 7.
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(y) "Rule 16b-3" means Rule 16b-3 (as amended from time to time)
promulgated by the Securities and Exchange Commission under the Act, and any
successor thereto.
(z) "Share Limitations" has the meaning given in Section 10(a).
(aa) "SAR" means a stock appreciation right, which is a right to
receive cash, Stock, or other property having a value on the date the SAR is
exercised equal to (i) the excess of the Fair Market Value of one share of
Stock on the exercise date over (ii) the base price of the SAR. The term
"SAR" does not include a Limited Right.
(bb) "Stock" means shares of the common stock of the Company, par
value $1.00 per share, or such other class or kind of shares or other
securities as may be applicable under Section 10.
(cc) "Subsidiary" means a "subsidiary corporation" of the Company as
defined in Section 424(f) (or any successor provision) of the Code, other
than corporations expressly excluded by the Committee from time-to-time.
(dd) "Vest" has the meaning given in Section 11(c).
(ee) "Required Withholding Taxes" means, in connection with the
exercise of or other taxable event relating to an Award, the total amount of
Federal and state income taxes, social security taxes, and other taxes which
the Employer of the Recipient is required to withhold.
SECTION 15. MISCELLANEOUS.
(a) Each provision of this Plan and the Award Documents relating to
ISOs shall be construed so that all ISOs shall be "incentive stock options"
as defined in Section 422 of the Code or any statutory provision that may
replace Section 422, and any provisions thereof which cannot be so construed
shall be disregarded, subject however to Sections 4(g) and 11(b) and
provided that Award Documents are permitted to have provisions which cause
Options which qualify as ISOs at the time of grant to cease to qualify as
ISOs at a later time or upon the happening of a later event. No discretion
granted or allowed to the Committee under this Plan shall apply to ISOs
after their grant except (i) to the extent the related Award Document shall
so provide or (ii) to the extent that the application of such discretion
would not cause such ISOs to cease to qualify as ISOs. Notwithstanding the
foregoing, nothing shall prohibit an amendment to or action regarding
outstanding ISOs which would cause them to cease to qualify as ISOs, so long
as the Company and the Recipient shall consent to such amendment or action.
(b) Without amending this Plan, Awards may be granted to Eligible
Persons who are foreign nationals or who are employed outside the United
States or both, on such terms and conditions different from those specified
in this Plan as may, in the judgment of the Committee, be necessary or
desirable to further the purposes of this Plan. Such different terms and
conditions may be reflected in Addenda to this Plan. However, no such
different terms or conditions shall be employed if such terms or conditions
constitute, or in effect result in, an increase in the aggregate number of
shares which may be issued under this Plan or a change in the definition of
Eligible Person.
(c) Notwithstanding any other provision in this Plan, the Committee
shall not act with respect to any Reporting Person in a manner which would
result in a forfeiture under Section 16(b) of the Act of some or all of the
economic benefits relating to his or her Awards, without in each case the
written consent of such Reporting Person.
- 11 -
<PAGE>
<PAGE>
(d) Nothing in this Plan or any Award Document shall confer on any
person any expectation to continue in the employ of his or her Employer, or
shall interfere in any manner with the absolute right of the Employer to
change or terminate such person's employment at any time for any reason or
for no reason.
- 12 -
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.7
<SEQUENCE>7
<FILENAME>exh10p7.txt
<DESCRIPTION>EMPLOYEE STOCK PURCHASE PLAN
<TEXT>
<PAGE>
Exhibit 10.7
ANHEUSER-BUSCH GLOBAL EMPLOYEE STOCK PURCHASE PLAN
I. NAME OF THE PLAN
The name of the plan is the Anheuser-Busch Global Employee Stock Purchase Plan,
hereinafter referred to as the Plan.
II. PURPOSE
The purpose of the Plan is to advance the interest of Anheuser-Busch Companies,
Inc. and its Subsidiaries by encouraging ownership of shares in the Company by
employees of the Company and its Subsidiaries located outside the United States,
improving their long-term incentives and aligning their interests with those of
the shareholders of Anheuser-Busch Companies, Inc.
III. RULES
1. Definitions
-----------
As used in this Plan:
a) "Compensation" means:
1) for salaried employee, basic or regular salary paid, and
2) for hourly employees, actual pay for regularly scheduled
working hours actually worked, paid vacations and paid
holidays, and
3) in neither case, including other forms of remuneration such as
bonus, overtime, salary continuance, severance pay, redundancy
pay, termination indemnities or other post-employment benefits;
all except as may be determined by the Company from time to time and
place to place consistent with local law.
b) "Board" means the Board of Directors of the Company.
c) "Booked Shares" means Shares owned by a Participant which are held in
his or her name by the Broker.
d) "Broker" means the securities broker selected by the Company to
execute transactions pursuant to the Plan and to hold the Booked
Shares.
e) "Commencement Date" means March 1, 1999 or a later date to be chosen
by the Company with respect to any location.
<PAGE>
<PAGE>
f) "Company" means Anheuser-Busch Companies, Inc.
g) "Eligible Employee" means any individual who is employed on a regular
basis by an Employer in a location outside the United States and
Puerto Rico and is on the regular payroll of the Employer for that
location; provided, any employees who:
1) are eligible to participate in any 401(k) plan maintained for
employees of the Company and its Subsidiaries;
2) are not permitted to participate by reason of local law or
regulation;
3) are required to report their trading in Shares pursuant to
Section 16 of the United States Securities Exchange Act of 1934;
4) are classified as temporary employees, leased employees or
independent contractors; or
5) are otherwise excluded by the Company under uniform and
consistent rules
shall not be Eligible Employees unless required by local law.
h) "Employer" means the Company and any Subsidiary or division or branch
of the Company or a Subsidiary with operations outside the United
States which agrees in writing to be an Employer, subject to the
consent of the Company.
i) "Market Price" on a particular day means the closing price of a Share
in United States currency on that day, as reported in the West Coast
edition of The Wall Street Journal, New York Stock Exchange
Transactions-Composite Transactions.
j) "Offering Date" means the date of inception of the Plan at a
particular location with respect to Eligible Employees at that
location on the date of inception there, and any subsequent March 1
on which the Company determines to make another offer of Shares to
Eligible Employees at that location in accordance with the Plan.
k) "Participant" means an Eligible Employee who has enrolled in the Plan
as provided for in Section 3.
l) "Purchase Date" means any date specified by the Company on which
Participants are authorized to purchase Shares. Except as otherwise
determined by the Company, all Purchase Dates shall occur on the
first day of March, June, September and December of any year, or if
any such day falls on a weekend or holiday in the United States, on
the next business day in the United States.
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<PAGE>
m) "Retained Shares" means Booked Shares held by the Broker in a
Participant's name for at least two (2) years. In no event shall any
Shares which are transferred by a Participant, by gift, sale,
bequest, inheritance or any other means or issued to the Participant
in certificate form be treated as Retained Shares.
n) "Rules" means the rules of this Plan as described in this document.
o) "Sale Date" means any date specified by the Company on which
Participants are permitted to sell Shares. Until otherwise determined
by the Company, Sale Dates shall occur on all dates on which Shares
are traded on the New York Stock Exchange.
p) "Savings Account" shall mean a Participant's individual savings
account established for the purpose of Share purchase under the Plan
by a financial institution selected by the Company or by the
Participant with the consent of the Company as the Company may
determine in its sole discretion.
q) "Share" means a share of the $1 par value common stock of the
Company.
r) "Subsidiary" means any corporation as to which the Company controls,
directly or indirectly, fifty percent (50%) or more of the combined
voting power of all classes of stock.
2. Shares Available
----------------
a) The number of Shares which may be issued pursuant to the Plan shall
not exceed 500,000, subject to adjustment under Section 19. For this
purpose:
1) The number of Shares subject to offer as of an Offering Date
shall be counted against this maximum at the Offering Date.
2) If an offering is payable in cash only, the number of Shares
on which such amount of cash is based shall be deemed used at
the Offering Date.
3) Shares subject to offer that (in whole or part) expire,
terminate, are forfeited or otherwise become non-payable and
Shares that are recaptured by the Company in connection with a
forfeiture may be reused in new offerings to the extent of
such expiration, termination, forfeiture, non-payability or
recapture.
b) In its sole discretion, the Company may issue treasury shares or
authorized but unissued shares. No Shares shall be offered in
exchange for previous Share offers with Market Prices higher than
the Market Price of the Shares subject to
3
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<PAGE>
the current offer, nor shall any offer be amended to reduce the
market price of the Shares under offer, nor shall any offer contain
a "reload" feature under which additional Shares are offered
automatically to Participants upon purchase of Shares under the
offer.
c) For purposes of satisfying its obligation to grant additional
Shares to a Participant pursuant to Section 11, the Company or the
Participant's Employer may uses Shares acquired from third parties
rather than treasury shares or authorized but unissued shares.
3. Participation
-------------
a) An Eligible Employee shall become eligible to become a Participant as
of January 1 following his or her first day of employment; provided
that all Eligible Employees on the regular payroll for a particular
location on the fifteenth (15th) day of the calendar month preceding
inception of the Plan in that location shall be eligible to become
Participants at inception of the Plan in that location.
b) Enrollment in the Plan shall include at a minimum: (1) a payroll
deduction authorization specifying the amount or rate of Plan
contributions per pay period, (2) an agreement to be bound by all of
the applicable terms and conditions of the Plan, (3) designation of
the Participant's tax residence and citizenship, (4) an agreement
that information obtained in connection with the Participant's Plan
participation may be communicated outside the country in which he or
she is employed in furtherance of Plan purposes, (5) an authorization
for the Employer and the Company to receive information on all
transactions in the Participant's Savings Account for purposes of
verifying compliance with the Plan either from the financial
institution in which the Participant's Savings Account is maintained
or from the Participant directly as determined by the Company from
time to time and place to place, if so requested by the Company,
(6) if determined to be appropriate by the Company, an authorization
for the Employer to withdraw amounts from the Participant's Savings
Account on the Participant's instruction for the purpose of buying
Shares in accordance within the Plan; and (7) any other information
deemed necessary or desirable by the Company, all in such form as the
Company may require.
c) An individual shall cease to be a Participant when he or she is no
longer an Eligible Employee by reason of transfer, death, termination
of employment (including retirement) or termination of the Plan in
his or her location.
4. Savings Accounts
----------------
a) The Company shall select a financial institution and a savings plan
offered by that institution in each country where an Employer has
Eligible Employees. A
4
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<PAGE>
savings plan must be available to all Eligible Employees of all
Employers in each country, and provide a Savings Account for and
in the name of each Participant in the country; provided, if the
Company determines in its sole discretion that a suitable savings
plan is not available in a particular location, the Company may
authorize the use of individual Saving Accounts established by
affected Participants for this purpose. Each financial
institution or Participant must agree: (1) to provide the
Employer and the Company with statements of the Participant's
Savings Account transactions to verify compliance with Plan
rules; and (2) to comply with all legal requirements regarding
tax and other reporting matters with respect to the Participant's
Savings Account.
b) A Participant's Savings Account shall be funded solely by amounts
withheld from the Participant's Compensation at the Participant's
election pursuant to the Plan by means of payroll deduction or by
like means approved by the Company.
c) Withdrawals from a Participant's Savings Account may be made either:
1) by the Participant for any purpose at any time, in which case
the amount withdrawn may not be redeposited, or
2) by the Participant or by the Employer on the instructions of the
Participant for purchase of Shares in accordance with the Plan,
as determined by the Company in its sole discretion.
5. Plan Contributions
------------------
Each Participant shall elect to contribute a percentage of Compensation
to be withheld from his or her pay for each pay period by his or her
Employer. The Company may impose a maximum on Participants' contributions
from time to time and place to place. The Participant may change the
percentage from time to time in accordance with procedures established by
the Company. A Participant's Plan contributions which are withheld by
payroll deduction shall be transferred by the Employer to the
Participant's Savings Account within a reasonable time after they are
withheld. Neither the Company nor any Employer shall be liable for
interest for the period between the date of withholding and the date of
transfer to the Participant's Savings Account. A Participant may elect to
cease or resume contributions from time to time pursuant to procedures
established by the Company.
6. Share Offerings
---------------
a) 1) On each Offering Date with respect to a location, each Eligible
Employee on the regular payroll for that location shall be
invited to purchase up to 100 Shares from the Company or the
Eligible Employee's Employer, as determined by the Company in
its sole discretion. An Eligible Employee making
5
<PAGE>
<PAGE>
contributions under the Plan as of an Offering Date shall be
deemed to have accepted an offer made on the Offering Date. Any
other Eligible Employee may accept an offer as of an Offering
Date by written election to enroll in the Plan and make
contributions under the Plan in accordance with procedures and by
such deadlines as may be established by the Company from time to
time. Notwithstanding anything, an Eligible Employee who is not
making Plan contributions as of an Offering Date or does not
elect to enroll and make Plan contributions in connection with an
offer made on the Offering Date shall not be eligible for the
offer.
2) A Participant's Savings Account shall be the only source of
funds for the Participant's purchase of Shares under the Plan.
3) The Shares offered to a Participant on each Offering Date
shall be in addition to any Shares offered to the Participant
on prior Offering Dates.
4) The purchase price of Shares offered on each Offering Date
shall be fixed at the Market Price on the United States
business day immediately before the Offering Date.
5) Each Share offering shall expire on the Purchase Date
coincident with the third anniversary of its Offering Date.
b) Each offer to purchase Shares under the Plan shall be evidenced by a
written offer from the Company or the Participant's Employer to the
Participant in form determined by the Company, including the
following terms and such other terms and conditions as the Company
may determine in its sole discretion from time to time and place to
place:
1) The number of Shares subject to the offer.
2) The price per Share subject to the offer in United States
currency.
3) The expiration date of the offer.
The written offers provided for herein may be transmitted on paper,
electronically or by other method selected by the Company. The
written offers may contain any provision approved by the Company
relating to the circumstances under which a termination is deemed to
occur. A Participant shall have none of the rights of a shareholder
with respect to any Shares unless and until the Shares are issued in
his or her name.
c) A Participant's right to purchase Shares under the Plan shall be
non-transferable and shall be exercisable only by the Participant
by notice in form prescribed by the Company delivered to the
Participant's Employer or the Company during the
6
<PAGE>
<PAGE>
Participant's lifetime, except as provided for in Section 14(c)
with respect to a Participant whose employment is terminated on
account of death.
7. Share Purchases
---------------
a) As of any Purchase Date, pursuant to procedures established by the
Company, with such advance notice as the Company may require from
time to time, a Participant may elect to apply all or a specified
part of the Participant's Savings Account to purchase Shares then
available to the Participant pursuant to Section 6.
b) If Shares are then available to a Participant under two or more
offerings, the Participant's election to purchase Shares shall be
applied in date order, earliest first, to the Share offerings then
available to the Participant for which the Purchase Price is lower
than the Market Price on the Purchase Date. If no Share offerings are
available to the Participant for which the Purchase Price is lower
than the Market Price on a Purchase Date, the Participant shall not
be eligible to purchase Shares on the Purchase Date.
c) A Participant's election to purchase Shares shall be in form
prescribed by the Company.
d) Any estimated withholding and other taxes incurred in connection with
a purchase of Shares shall be funded by means of:
(i) additional withholding from the Participant's current pay,
subject to any legal limits on maximum withholding; or if that
is insufficient to satisfy the estimated obligation as
determined by the Participant's Employer,
(ii) other assets of the Participant, in which case the Participant's
election shall be accompanied by cash or a certified check in
the amount of the estimated withholding taxes.
e) A Participant's election shall include an authorization to withdraw
the specified amount in local currency from the Participant's Savings
Account to apply to the purchase of Shares.
f) The purchase price of the Shares purchased and the amount required to
be withheld by the Participant's Employer under applicable law in
excess of the amounts to be withheld from the Participant's current
pay by payroll deduction shall be paid by the Participant not later
than the Purchase Date.
g) If the amount in a Participant's Savings Account is less than the
amount required to carry out the Participant's election, the
Participant's election shall be carried out to the extent possible,
provided that all transaction costs and tax liabilities are satisfied
by the Participant.
7
<PAGE>
<PAGE>
h) The amount specified in a Participant's election to purchase Shares
shall be converted to United States currency and used by the Company
or the Participant's Employer to carry out the Participant's
election; provided, if the amount of United States currency so
obtained exceeds the amount required to purchase all Shares available
to the Participant, the excess shall not be converted to United
States currency but instead shall remain in the Participant's Savings
Account for subsequent use under the Plan, or if so converted, the
transaction shall be reversed to the extent of the excess, and the
excess shall be redeposited in the Participant's Savings Account,
without liability for interest thereon, for subsequent use under
the Plan.
i) Shares acquired by a Participant pursuant to the Plan shall be
delivered as Booked Shares; provided that a Participant may request
that the Broker issue the Shares in certificate form in accordance
with the Broker's regular practices and procedures. Requests for
certificates must be accompanied with information required to enable
delivery of the certificates and payment of any fees charged by the
Broker for issuance of the Shares in certificate form.
j) The Company may establish minimum purchase requirements for all
Participants similarly situated.
8. Dividends on Booked Shares
--------------------------
Any dividends paid on Booked Shares shall be the property of the
respective Participants and shall be reinvested in Shares for the benefit
for the Participant, in accordance with the Broker's customary practices
and procedures, or at the election of a Participant shall be retained by
the Broker in United States currency for the benefit of the Participant,
except as required by law to be converted to the Participants' local
currencies, in which case they shall be delivered to the respective
Participants.
9. Tax Withholding
---------------
Where required by law, each Employer shall report to the appropriate
government authority any amount subject to tax and social charges on
account of any offer, purchase or sale pursuant to the Plan and shall
estimate all current tax and social charge withholding liabilities, and
the Participant shall satisfy this liability by means of withholding from
the Participant's current pay or from the Participant's other assets.
8
<PAGE>
<PAGE>
10. Sale or Other Transfer of Shares
--------------------------------
a) 1) A Participant may elect to sell a specified number of Booked
Shares in accordance with the Broker's regular practices and
procedures as soon as practical after transfer to the Broker or
on any subsequent Sale Date.
2) The Participant shall designate which Booked Shares are to be
sold; provided, if the Participant uses a method of
communication maintained by the Broker which does not permit
designation of which Booked Shares shall be sold, the Broker
shall sell the specified number of Shares on a last-in first-out
basis. As of May 1, 1999, the only such method is the Broker's
automated voice response unit.
3) The proceeds of sale of Booked Shares, net of any transaction
fees associated to the sale, including but not limited to
brokerage fees, wire transfer fees, and any taxes required to be
withheld incident to the sale, shall be retained by the Broker
for the benefit of the respective Participants; provided, if
required by law or instructed in writing by the Participant,
such net proceeds shall be converted by the Broker from United
States currency to the Participant's local currency and
delivered to the Participant.
b) A Participant may transfer ownership of Booked Shares by gift to the
extent permitted by and in accordance with the Broker's customary
practices and procedures and laws applicable to the Participant.
c) A Participant may sell any Shares issued to the Participant in
certificate form at any time by means selected by the Participant and
at the Participant's sole expense.
11. Match on Retained Shares
------------------------
a) On or about each Offering Date, the Company shall announce the rate
at which Shares offered on that Offering Date which become Retained
Shares will be matched by the Company or the Participant's Employer.
This match rate shall be determined with respect to Participants in
each location by the Chief Executive Officer of Anheuser-Busch
International, Inc. in his or her sole discretion, in a range between
10% and 50% based on business performance for the fiscal year ending
on December 31 prior to the Offering Date.
b) As of the second anniversary of the Purchase Date for any Retained
Shares of a Participant, the Company or the Participant's Employer,
as determined by the Company in its sole discretion, shall grant the
Participant additional whole and fractional shares of Booked Shares
based on the applicable match rate. Notwithstanding anything, an
individual whose employment with the Company and all subsidiaries
ends before the second anniversary of the Purchase Date for
9
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<PAGE>
any Retained Shares shall not be eligible for this grant, unless the
individual retires from status as an Eligible Employee on or after
attainment of age 60.
12. Currency Conversion
-------------------
a) Any currency conversion required in connection with a Participant's
election to purchase Shares pursuant to Section 7 or transfer of
employment pursuant to Section 15 shall be carried out by the Company
or the Participant's Employer by any means the Company selects in its
reasonable discretion. On inception of the Plan, the rate of currency
conversion used in connection with Share purchase shall be determined
by the Company on the basis of rates published on the first business
day of the calendar month that ends immediately prior to the affected
Purchase Date.
b) Any currency conversion required in connection with a transaction
related to Booked Shares held by the Broker shall be carried out by
the Broker in accordance with its customary practices and procedures.
13. Statements
----------
Participants shall receive statements of their Savings Accounts and Share
transactions not less frequently than annually.
14. Termination of Employment
-------------------------
a) Termination of employment includes the separation of a Participant,
directly or through the separation of his or her Employer, from the
group of companies comprised of the Company and its Subsidiaries for
any reason, including death, permanent or indefinite disability,
retirement, resignation, dismissal, permanent or indefinite layoff
or other event having a similar effect, or by reason that the
Participant's Employer ceases to be a Subsidiary or a division of
a Subsidiary.
b) In the event of a Participant's termination of employment with the
Company and all of its Subsidiaries for any reason other than death,
all of the Participant's outstanding offers to purchase Shares shall
immediately be cancelled. The Participant or the beneficiary
designated by the Participant or required by law with respect to
a deceased Participant may treat any Booked Shares owned by the
Participant at the time of termination of employment as his or her
own property.
c) A Participant or beneficiary shall not be eligible for any match of
the type provided for in Section 11 after termination of employment
except a Participant who retires on or after attainment of age 60.
10
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<PAGE>
d) If a Participant's termination of employment ends by reason of the
Participant's death, the beneficiary designated by the Participant or
required by law may elect to apply all or part of the amount of the
Participant's Savings Account to purchase Shares then available to
the Participant in accordance with Section 7 for a period not in
excess of six (6) months from the Participant's date of death.
e) Layoff or approved leave of absence shall not be treated as
termination of employment for this purpose, provided that the
Participant returns to work within twelve (12) months after the
period of layoff begins or before the expiration of the approved
leave of absence, as the case may be. In the event that the
Participant does not return to work within the period of time
provided for in this paragraph (d), the Participant's employment
shall be deemed terminated as of the first day of such layoff or
leave of absence. If the period of layoff or approved leave of
absence includes the date on which the Participant would otherwise be
eligible for the match on any Retained Shares pursuant to Section 11,
the match shall not be awarded unless the Participant returns to work
within the period of time provided for in this paragraph (d), and if
the match is awarded with respect to such Retained Shares, it shall
be awarded as of the Purchase Date following the Participant's return
to work.
15. Transfers
---------
a) If a Participant transfers from one location where Plan participation
is available to another location where Plan participation is
available, to the extent permitted by law, the Participant shall
continue to participate in the Plan without interruption; provided,
except as limited by law: (1) the Participant shall re-enroll in the
new location for purposes of authorizing Plan contributions to his or
her Savings Account; (2) the Participant shall authorize transfer of
the amount in his or her Savings Account in the prior location to his
or her Savings Account in the new location at then prevailing
exchange rates; and (3) the Participant shall be subject to any local
rules in the new location with respect to Shares purchased with his
or her Savings Account in the new location, including amounts
transferred from his or her Savings Account in the old location.
b) If a Participant transfers from a location where Plan participation
is available to a location where Plan participation is not available,
to the extent permitted by law, the Participant may use his or her
Savings Account to purchase Shares then available to the Participant
under all Share offerings on the Purchase Date preceding the
transfer, and the Participant may elect to sell the Shares so
purchased and any Booked Shares then owned by the Participant or to
receive the Shares in certificate form pursuant to procedures then in
use under Sections 7 and 10 of the Plan or retain the Shares as
Booked Shares, in accordance with and subject to the practices and
procedures of the Broker. If no Purchase Date occurs between the date
the Participant is notified of the transfer and the
11
<PAGE>
<PAGE>
Participant's transfer date, the Company shall determine in its
sole discretion when and how the Participant's participation in
the Plan shall be terminated.
c) If an Eligible Employee transfers from a location where Plan
participation is not available to a location where Plan participation
is available, the Eligible Employee may become a Participant as of
the next regular Offering Date in the new location so long as the
Employee joined the Company and its Subsidiaries before January 1
next preceding the Offering Date.
16. Plan Changes and Termination
----------------------------
a) The Company is under no obligation to make Share offerings under this
Plan. The Company may make changes to the Plan in respect of any
Share offering prior to its Offering Date; provided that no change
shall increase the maximum number of Shares issuable under the Plan
without approval of the Stock Option Plans Committee of the Board or
expand the definition of Eligible Employee.
b) The Company may terminate the Plan with respect to any or all groups
of Eligible Employees at any time.
c) Any Employer may withdraw from the Plan at any time by three (3)
months' advance written notice to the Company; provided, in that
case, that affected Participants shall not be prohibited from
applying amounts in their respective Savings Accounts to outstanding
Share Offerings as of the Purchase Date coincident with or next
preceding the date of withdrawal.
17. Variation in Plan Rules
-----------------------
The Company in its sole discretion may change the Plan Rules with respect
to specific locations and the Participants of any Employer in those
locations. Such changes may be reflected in Exhibits to this document or
by other methods determined by the Company.
18. Administration
--------------
a) Responsibility for administration of the Plan shall be shared by the
Company and each Employer in the matter determined by the Company in
its sole discretion from time to time and place to place. The Company
and the Employers shall appoint local representatives to handle Plan
administration to the extent they deem appropriate.
b) The Company shall have sole authority and responsibility to construe
and interpret the Plan and establish, amend, and revoke rules,
regulations and procedures for its administration. The Company in the
exercise of this authority and responsibility shall generally
determine all questions of policy and
12
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<PAGE>
expediency that may arise, may correct any defect, supply any
omission or reconcile any inconsistency in the Plan or in any
instrument associated with the Plan in a manner and to the extent
it shall deem necessary or expedient. The Company's interpretation
and construction of any provision of the Plan shall be final and
conclusive.
c) The Company shall act through its Vice President, Employee Benefits
and through his or her delegates. The Company may appoint any one or
more employees to act as a Committee to carry out any one or more of
its administrative duties under the Plan.
19. Changes in Capital Stock
------------------------
a) In the event of a change in the Company's capital stock as a result
of any dividend or distribution (whether in the form of cash, Shares,
other securities or other property), stock split, reverse stock
split, recapitalization, reorganization, merger, consolidation,
split-up, split-off, spin-off combination, repurchase or exchange of
Shares or other securities of the Company, issuance of warrants or
other rights to purchase Shares or other securities of the Company or
any other similar corporate transaction, change or event, the
aggregate number and class of Shares available in subsequent
offerings under the Plan and the number, class and price of Shares
subject to outstanding offers under the Plan shall be adjusted in the
same manner and to the same extent as under the Company's 1998
Incentive Stock Plan, except as otherwise determined by the Stock
Option Plans Committee of the Board.
b) If the Board approves any merger or consolidation of the Company with
or into any other corporation or business entity as a result of which
the Company shall not be the surviving corporation, Shares then
subject to offer shall be treated in the same manner as Awards under
the Company's 1998 Incentive Stock Plan, except as otherwise
determined by the Stock Option Plans Committee of the Board.
20. Miscellaneous
-------------
a) No discretion granted or allowed to the Company shall apply to Shares
after their Offering Date.
b) Nothing in this Plan shall confer on any person any expectation to
continue in the employ of any Employer or interfere in any manner
with the right of any Employer to change or terminate any person's
employment at any time for any reason or for no reason, to the extent
allowed under governing law.
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<PAGE>
21. Governing Law
-------------
a) Except as otherwise expressly required under the laws of a country,
this Plan and all rights hereunder shall be governed by and construed
in accordance with the laws of the state of Delaware, United States
of America.
b) Should any provision of this Plan be determined by a court of
competent jurisdiction to be unlawful or unenforceable for a country,
such determination shall in no way affect the application of that
provision in any other country, or any of the remaining provisions
of the Plan.
14
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.8
<SEQUENCE>8
<FILENAME>exh10p8.txt
<DESCRIPTION>SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
<TEXT>
<PAGE>
Exhibit 10.8
ANHEUSER-BUSCH COMPANIES, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
AMENDED AND RESTATED AS OF MARCH 1, 2003
ANHEUSER-BUSCH COMPANIES, INC., a Delaware corporation, established
this Supplemental Executive Retirement Plan, originally effective as of
January 1, 1984. The Plan has been amended from time to time and the Company
hereby amends and restates the Plan. The provisions of this restated Plan
shall apply to eligible employees whose termination of employment with the
Company or any other Participating Employer occurs on or after March 1,
2003. The Plan is intended to be a non-qualified, unfunded plan to provide
supplemental retirement benefits to a select group of management and highly
compensated employees, as described in Section 201(2) of the Employee
Retirement Income Security Act of 1974 ("ERISA").
1. Definitions. The capitalized terms used in this Plan shall
-----------
have the meanings herein set out:
(a) "Accrued Benefit" means at any given time the benefit
calculated in accordance with the formula in Section 3, using the
Participant's Eligible Earnings and Credited Service as of the date the
calculation is being made. The benefit so calculated shall be the benefit
that would commence under the basic method of payment on the Participant's
Normal Retirement Date.
(b) "Actuarial Equivalent" means a benefit or benefits, or a
payment or payments, which are of equal value at the date of determination
to the benefits for which they are to be substituted. Equivalence of value
is determined from actuarial calculations based on actuarial assumptions as
to interest and mortality applied with respect to the particular form or
forms of payment under the Basic Plan, disregarding the interest and
mortality assumptions grandfathered as of December 31, 1999 with respect to
single sum and installment payments.
(c) "Basic Plan" means the Supplement for the Anheuser-Busch
Salaried Employees Pension Plan maintained as part of the Anheuser-Busch
Companies Pension Plan as now in effect or as hereafter amended.
(d) "Board" means the board of directors of the Company.
(e) "Committee" means the Committee designated to administer
this Plan, as described in Section 18.
(f) "Company" means Anheuser-Busch Companies, Inc., a
Delaware corporation, and any corporation(s) into which or with which it may
be liquidated, merged or consolidated.
(g) "Credited Service" Except as provided herein, a
Participant's Credited Service under this Plan should be the same as the
Participant's Credited Service under the Basic Plan for all purposes. This
generally means an individual's
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years and completed months of salaried employment with a Participating
Employer after attainment of age 21. Credited Service shall not exceed 30
years. Additional Credited Service granted under the Change in Control
provisions of the Anheuser-Busch Companies Pension Plan (Section 19.14)
shall not be Credited Service under this Plan.
(h) "Eligible Earnings" means, for any calendar year, the
sum of the employee's annual base salary as of January 1 of such year plus
the bonus earned during the prior calendar year. For purposes of computing
benefits under this Plan, the Eligible Earnings to be used shall be the
highest of the Eligible Earnings in the calendar year of termination or any
of the four preceding calendar years. Eligible Earnings shall recognize any
compensation deferred under the Executive Deferred Compensation Plan and
treat such compensation as if it were not deferred.
(i) "Eligible Employee" means a salaried employee of a
Participating Employer who is an active participant currently accruing
benefits in the Basic Plan and who satisfies or in the past has satisfied
one or more of the following requirements:
i) He or she is a member of the Company's Strategy
Committee;
ii) He or she has a salary band of I or above, or
the equivalent thereof as determined by the Committee, and has, for the
current calendar year, Eligible Earnings of at least $140,000 (indexed as
described below) or such other amount as the Committee shall determine from
time to time; or
iii) He or she is an officer of the Company or
Anheuser-Busch, Inc., a Missouri corporation, excluding an assistant
officer.
The $140,000 figure shall be indexed as of January 1 of each year commencing
January 1, 1994, in accordance with the Company's overall combined merit
budget increase applicable for such year. (For 2001, the Eligible Earnings
requirement is $178,853.)
(j) "Excess Benefit Plan" means the Anheuser-Busch
Companies, Inc. Excess Benefit Plan, Amended and Restated as of March 1,
2000, and as thereafter amended, or any other "excess plan" as described in
Section 3(36) of ERISA, maintained by a Participating Employer and as in
effect from time to time.
(k) "Normal Retirement Date" means the first day of the
month coincident with or next following the date on which the Participant
attains his or her sixty-fifth (65th) birthday.
(l) "Participant" means an Eligible Employee who is
participating in this Plan in accordance with Section 2.
(m) "Participating Employer" means the Company and any other
member of the controlled group of corporations of which the Company is a
member
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which is a Participating Employer in the Basic Plan and which has adopted
this Plan in the manner described in Section 16.
(n) "Plan" means this Anheuser-Busch Companies, Inc.
Supplemental Executive Retirement Plan, Amended and Restated as of March 1,
2003, and as thereafter amended.
(o) "Primary Social Security Benefit" means, for retirements
on or after the Normal Retirement Date, the estimated primary insurance
amount that would commence immediately under the Federal Social Security Act
in effect on the retirement date assuming that the Participant's earnings
for Social Security purposes are equal to the benefit base as determined
under Section 230 of the Federal Social Security Act from the date the
Participant attained age 21 until the Participant's retirement date.
For purposes of determining the Accrued Benefit prior to a
Participant's Normal Retirement Date, the Primary Social Security Benefit
means:
(i) An amount determined as described above
assuming that the Participant retires on his or her Normal Retirement Date
and that the Social Security Act and benefit base remain unchanged in the
future, multiplied by
(ii) The ratio of the Participant's Credited
Service as of the date of determination to the lesser of thirty (30) years
or the Participant's Credited Service had the Participant remained an active
Participant until his or her Normal Retirement Date.
(p) "Subsidiary" means any business entity in which the
Company has an equity interest of at least fifty percent.
Miscellaneous Rules of Construction. Masculine pronouns include the
- -----------------------------------
feminine, the singular includes the plural, and the plural includes the
singular, as the context or application demands.
2. Participation. Each Eligible Employee shall commence
-------------
participation in this Plan as of the first day of the month coincident with
or next following the date he or she first becomes an Eligible Employee. An
individual who is an Eligible Employee solely under subparagraph (ii) of
Section 1(i) shall be deemed to have first satisfied the band and
compensation requirements of such provision on January 1 of the first
calendar year for which such requirements are satisfied. Except as provided
in Section 16, once an individual becomes a Participant, he or she shall
continue to participate until termination of employment with a Participating
Employer even if such individual no longer satisfies the band and
compensation requirements to remain an Eligible Employee. Any Eligible
Employee on October 1, 1993 who was not a Participant in this Plan prior to
its restatement effective October 1, 1993 shall first participate as of
October 1, 1993.
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3. Benefit on or after Normal Retirement Date.
------------------------------------------
(a) A Participant who ceases to be employed by all members
of the Company's controlled group of corporations on or after his or her
Normal Retirement Date shall receive a monthly benefit, payable under the
basic method of payment described in Section 8, and commencing on the first
day of the month coinciding with or immediately following his or her last
date of employment, in an amount which is one-twelfth of the following:
(i) For Strategy Committee members, one and
two-thirds percent of Eligible Earnings times Credited Service; for all
other Participants, one and one-half percent of Eligible Earnings times
Credited Service (provided that once a Participant becomes a Strategy
Committee member, the Participant's benefit will be based on the higher
formula for all Credited Service even if the Participant ceases to be a
Strategy Committee member prior to retirement); less
----
(ii) The Participant's annual retirement benefit
payable at Normal Retirement Date (or, if applicable, postponed retirement
date) under the Basic Plan, under the basic method of payment described in
such plan; less also
---------
(iii) Any other benefits from any excess benefit
plan or other retirement plan or arrangement maintained or sponsored by the
Company or any Subsidiary, other than a qualified or nonqualified 401(k)
plan or a voluntary nonqualified deferred compensation plan. The reduction
under this paragraph shall be the annual benefit under such other plan or
plans, payable at Normal Retirement Date (or, if applicable, postponed
retirement date), expressed as if payable under the basic method of payment
described in such plan; provided, however, that if such basic method is not
a form of single life annuity, then expressed as if payable solely for the
lifetime of the Participant on an Actuarial Equivalent basis; less also
---------
(iv) The Participant's annual Primary Social
Security Benefit.
(b) In no event shall a Participant's benefits calculated
under 3(a) be less than the difference between (i) the benefit actually
payable under the Basic Plan, and (ii) the benefit that would have been
payable under the Basic Plan without regard to the limitation imposed by
Section 401(a)(17) of the Internal Revenue Code (both amounts to be
determined under the basic method of payment). This minimum benefit shall be
separately calculated with respect to all Participants, including those
whose benefits exceed this minimum, and shall be treated as a separate
obligation payable from a separate plan solely for the purpose of
determining which, if any, portion of a Participant's benefits is subject to
income tax in the state where the Participant resided when the benefit was
earned.
(c) A Participant's gross benefit calculated under 3(a)(i)
hereof shall never be lower than the amount that would have been calculated
under subparagraph (a)(i) if the Participant's retirement had occurred on
any date after the Participant's attainment of age 55 and five years of
Credited Service.
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(d) If a Participant retires after his or her Normal
Retirement Date, the Participant's gross benefit calculated under 3(a)(i)
shall not be less than the Actuarial Equivalent of the Participant's gross
benefit under 3(a)(i) calculated as of the date the Participant attained
Normal Retirement Date.
4. Benefit on Early Retirement. The following benefits are
---------------------------
available for Participants who retire prior to Normal Retirement Date:
(a) A Participant who ceases to be employed by all members
of the Company's controlled group of corporations prior to his or her Normal
Retirement Date but after reaching age 62 and completing 30 years of
Credited Service shall be entitled to receive a retirement benefit equal to
his or her Accrued Benefit, but commencing on the first day of the month
coinciding with or immediately following the Participant's last date of
employment.
(b) A Participant who ceases to be employed by all members
of the Company's controlled group of corporations after reaching age 55 and
who has at least five years of Credited Service but who is not eligible to
receive a benefit under paragraph (a) above may, unless disapproved by the
Company's Chief Executive Officer (or, in the case of the Chief Executive
Officer, the Board of Directors), be granted a benefit equal to his or her
Accrued Benefit reduced in accordance with the reduction applicable to the
Participant's retirement benefits payable under the Basic Plan. Such benefit
shall commence as of the first day of the month coincident with or next
following the Participant's last date of employment.
(c) There shall be no benefits payable from this Plan for a
Participant who ceases employment prior to the attainment of age 55, except
as provided in Sections 5, 6 and 11.
5. Pre-Retirement Death Benefit.
----------------------------
(a) If a Participant dies while employed by a Participating
Employer and after otherwise satisfying the requirements of Section
3, 4 or 6 to receive a retirement benefit, a death benefit may be
paid.
(b) The amount of the death benefit, if any, payable from
this Plan shall be the single lump sum Actuarial Equivalent of the
Participant's retirement benefit determined under Section 3, 4 or 6,
whichever applies, as of the date of the Participant's death.
(c) Any amount payable under this Section 5 shall be paid in
a single lump sum to the Beneficiary determined in accordance with
Section 12.
6. Disability Benefit. A Participant whose employment terminates
------------------
because of disability prior to becoming eligible for benefits under Section
3 or 4 shall be entitled to the Actuarial Equivalent of his or her Accrued
Benefit. Disability shall be established, as determined by the Committee, if
the Participant is unable for a period reasonably
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expected to exceed six months to perform the duties of the position held
prior to the incident or the onset of the illness resulting in the
disability.
7. Forfeiture for Activity Contrary to the Company's Best
------------------------------------------------------
Interests.
- ---------
(a) Notwithstanding any provision of this Plan to the
contrary, the right of a Participant and his or her beneficiary or
beneficiaries to receive a benefit hereunder is expressly conditioned upon
the Participant neither (i) having ceased to be employed by the Company or
any Subsidiary under circumstances or conditions inimical or contrary to the
best interests of the Company or any Subsidiary, nor (ii) thereafter
engaging in any activity which in the Committee's judgment is inimical or
contrary to the best interests of the Company or any Subsidiary.
(b) Should a Participating Employer propose to enforce the
foregoing, it shall give written notice to the Participant or other
person(s) otherwise entitled to payment, and may withhold payment pending
final resolution of the matter. The Committee shall thereupon investigate
the alleged violation and shall consider, under such rules of procedure as
the Committee shall deem reasonable, such evidence and testimony as the
Participating Employer and the Participant or other person or persons
receiving or otherwise entitled to receive payment may wish to submit in
support or refutation of the alleged violation. The decision of the
Committee shall be final and conclusive. If the Committee concludes that
there has been a violation, the right of the Participant and all
beneficiaries to receive payment hereunder shall thereupon cease. If the
Committee concludes that there has not been a violation, the amounts
withheld or suspended shall become payable as though no proceedings had been
instituted nor any payment withheld or suspended, without, however, any
interest for the period during which such amounts were withheld or
suspended.
(c) The provisions of this Section authorizing the
Participating Employer to give notice of an alleged violation or possible
violation of the conditions of paragraph (a) shall not be interpreted as
requiring the Participating Employer to take such action in each and every
instance of a violation or suspected violation, and in determining whether
an attempt to enforce the forfeiture provisions of this Section shall be
made, the Participating Employer may consider the possible economic damage
it might suffer from the violation or suspected violation, the circumstances
surrounding the discontinuance of the employment of the Participant with the
Participating Employer and the quantum of proof which the Participating
Employer may have of a violation of the aforesaid conditions.
(d) The provisions of this Section shall in no way impair or
derogate the rights which a Participating Employer may otherwise have under
any employment contract with a Participant or at law or in equity, to
prevent the disclosure of confidential information or to recover damages for
the disclosure thereof or to prevent a Participant from engaging in
competition with a Participating Employer or to recover damages therefor.
(e) The Board (or the Executive Committee at any time the
Board of Directors is not in session) may revoke this Section at any time,
whereupon no
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Accrued Benefit at that time shall ever be subject to forfeiture or
revocation for any reason, including (but not limited to) any subsequent
amendment to this Plan which reinstates the provisions of this Section or
imposes similar conditions on a Participant's right to receive benefits
hereunder.
(f) If the provisions of this Section are invoked at any
time after payments have already been made, the Participating Employer shall
have the right to a refund of all monies theretofore paid. If the
Participating Employer shall find it necessary to file suit to recover any
amount hereunder, it shall be entitled to recover its reasonable attorney's
fees and costs.
8. Payment Methods. The basic method of payment for Participants
---------------
retiring on or after January 1, 1995 shall be monthly payments for life,
beginning on the first day of the month coincident or next following the
Participant's retirement date, with the last payment being for the month in
which the Participant's death occurs, but with 120 monthly payments
guaranteed. Notwithstanding the foregoing, payment shall be made in a single
lump sum unless the Participant gives written notice to the Committee, at
least one year prior to the date of employment termination, that the
Participant elects to receive benefits under either the basic method of
payment described above or one of the following optional methods which shall
be the Actuarial Equivalent of the basic method of payment:
(a) A two-thirds joint and survivor annuity with such
contingent annuitant as the Participant may designate. If a Participant has
selected this method of payment and the contingent annuitant dies before
payments begin, the selection shall be revoked, but if the contingent
annuitant dies after payments begin, the selection of this method of payment
shall not be affected and no new contingent annuitant may be named; or
(b) Level installments payable annually over a five-year
period.
(c) Level installments payable annually over a ten-year
period.
A Participant may elect an optional method of payment under this Plan which
is different from the method of payment elected under either the Basic Plan
or the Excess Benefit Plan.
9. Obligation to Pay Benefits Hereunder. No trust fund, escrow
------------------------------------
account or other segregation of assets shall be established or made by any
Participating Employer to guarantee, secure or assure the payment of any
benefit hereunder. The obligation of each Participating Employer to pay
benefits pursuant to this Plan shall constitute only a general obligation of
the Participating Employer to the Participants and other payees hereunder in
accordance with the terms hereof. Payment of benefits by a Participating
Employer hereunder shall be made only from the general funds of the
Participating Employer and no Participant or other potential payee of any
amount hereunder shall have any interest in any particular asset of any
Participating Employer by reason of the existence of this Plan, and the
amounts payable hereunder shall be subject in all respects to claims of
general creditors of the respective
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Participating Employers until actually paid over to the person(s) entitled
to receive the same.
10. Special Rule for Non-Deductible Amounts. Any amount otherwise
---------------------------------------
payable under the Plan in a calendar year for which the Company determines
that the amount would not be deductible by any Participating Employer under
section 162(m) of the Internal Revenue Code, shall not be paid until such
calendar year as the Company determines that the amount has ceased to be so
non-deductible. In the case of any inconsistency between this Section 10 and
any other provision of the Plan, this Section 10 shall govern, except in the
case of Section 11 becoming applicable.
11. Change in Control.
-----------------
(a) If a Change in Control (as defined in Section 11(b))
shall occur, then, notwithstanding anything to the contrary herein, a
Participant's Accrued Benefit under the Plan as of the Change in Control
Date shall be fully vested and non-forfeitable. Within 30 days after the
Change in Control Date, the Participant shall be paid, in a single lump-sum
payment, the Actuarial Equivalent of such Accrued Benefit as of the date of
payment. Notwithstanding the foregoing, if, on the Change in Control date, a
Participant otherwise satisfied the eligibility requirements for early or
normal retirement benefits under Sections 3 or 4, such Participant's benefit
shall be paid as if he or she actually retired on the Change in Control
Date. The Chief Executive Officer shall be deemed to have granted any
necessary approvals.
(b) For purposes of this Plan, a "Change in Control" shall
occur automatically if and when an "Acceleration Date" occurs as defined in
the Company's 1998 Incentive Stock Plan or if and when an analogous change
in control event occurs as defined in any successor to such plan, and the
Change in Control Date shall be the Acceleration Date or analogous date as
defined therein.
(c) This Section 11 may be deleted or amended in any way
pursuant to Section 20 at any time prior to a Change in Control.
Notwithstanding Section 20, following a Change in Control, the provisions of
this Section 11 cannot, after the Change in Control Date, be amended in any
manner without the written consent of each individual who was a Participant
immediately prior to the Change in Control.
(d) Following a Change in Control, this Plan shall continue
in effect, notwithstanding that payment of benefits shall have been made
under Section 11(a), unless and until terminated by the Company.
(e) If a Change in Control occurs, Section 7 shall no longer
apply to any individual whose activities are not under investigation by the
Committee on the Change in Control Date.
(f) If by reason of this Section an excise or other special
tax ("Excise Tax") is imposed on any payment under this Plan (a "Required
Payment"), the amount of each Required Payment shall be increased by an
amount which, after payment of
8
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income taxes, payroll taxes and Excise Tax thereon, will equal such Excise
Tax on the Required Payment.
12. Concerning Payment; Beneficiaries.
---------------------------------
(a) Except as otherwise provided in this Section, any amount
payable under this Plan as a result of or following the death of a
Participant shall be applied only for the benefit of the beneficiary or
beneficiaries designated by the Participant pursuant to this Section. Each
Participant shall specifically designate, by name, on forms provided by the
Committee, the beneficiary (ies) to whom any such amounts shall be paid. A
Participant may change or revoke a beneficiary designation without the
consent of the beneficiary (ies) at any time by filing a new beneficiary
designation form with the Committee. The filing of a new form shall
automatically revoke any forms previously filed with the Committee. A
beneficiary designation form not properly filed with the Committee prior to
the death of the Participant shall have no validity under the Plan.
(b) Except as provided in Section 8, any such designation
shall be contingent on the designated beneficiary surviving the Participant.
If a designated beneficiary survives the Participant but dies before
receiving the entire amount payable to the designated beneficiary hereunder,
the amount which would otherwise have been so paid shall be paid to the
estate of the deceased beneficiary unless a contrary direction was made by
the Participant, in which case such direction shall control. More than one
beneficiary, and alternative or contingent beneficiaries, may be designated,
in which case the Participant shall specify the shares, terms and conditions
upon which amounts shall be paid to such multiple or alternative or
contingent beneficiaries, all of which must be satisfactory to the
Committee.
(c) If no beneficiary designation is on file with the
Committee at the time of the Participant's death or no beneficiary
designated by the Participant survives the Participant, the Participant's
estate shall be deemed to be the beneficiary designated to receive any
amounts then remaining payable under this Plan.
(d) In determining any question concerning a Participant's
beneficiary, the latest designation filed with the Committee shall control
and intervening changes in circumstances shall be ignored; provided, if a
Participant's spouse is designated as beneficiary but thereafter is divorced
from the Participant, such designation shall become invalid as of the date
of divorce unless the Participant files a beneficiary designation form with
the Committee after the date of divorce confirming designation of such
former spouse as beneficiary.
(e) Any check issued on or before the date of a
Participant's death shall remain payable to the Participant, whether or not
the check is received by the Participant prior to death. Any check issued
after the date of the Participant's death shall be the property of the
Participant's beneficiaries determined in accordance with this Section 12.
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13. Payees Presumed Competent. Every person receiving or claiming
-------------------------
amounts payable under this Plan shall be conclusively presumed to be
mentally competent and of legal age until the Committee receives a written
notice, in form, manner and substance acceptable to it, that any such person
is incompetent or is a minor or that a guardian or other person legally
vested with the care of the person's estate has been appointed.
14. Facility of Payment. If any amount is payable hereunder to a
-------------------
minor or other person under legal disability or otherwise incapable of
managing his or her own affairs, as determined by the Committee in its sole
discretion, payment thereof shall be made in one (or any combination) of the
following ways, as the Committee shall determine in its sole discretion:
(i) Directly to said minor or other person;
(ii) To a custodian for said minor or other person
(whether designated by the Company or any other person) under the Missouri
Transfers to Minors Law, the Missouri Personal Custodian Law or a similar
law of any other jurisdiction;
(iii) To the conservator of the estate of said
minor or other person; or
(iv) To some relative or friend of such minor or
other person for the support, welfare or education of such minor or other
person.
The Committee shall not be required to see to the application of any payment
so made, and payment to the person determined by the Committee shall fully
discharge the Plan and the Participating Employer from any further
accountability or responsibility with respect to the amount so paid.
15. Notice of Address; Lost Payees. The address of every
------------------------------
Participant or other person entitled to any payment hereunder on file for
purposes of the Basic Plan shall be used for all purposes of this Plan. If
the Committee is unable to locate any person, or the estate of such person,
after a reasonable attempt to locate such person has been made, within two
years after an amount becomes payable hereunder, the right and interest of
such payee in and to the amount payable shall terminate on the last day of
such two-year period.
16. Participating Employer. Any Participating Employer in the Basic
----------------------
Plan may become a Participating Employer in this Plan by submitting to the
Committee a resolution of its board of directors adopting the provisions of
this Plan. The adoption of this Plan by a Participating Employer shall
constitute an automatic delegation by it to the Board of full authority to
amend or terminate the Plan and to the Committee to administer this Plan.
Benefits payable under this Plan for a Participant whose employment
terminates from a Participating Employer shall be solely the obligation of
that Participating Employer. A Participating Employer may withdraw from the
Plan by action of its board of directors. If such a withdrawal shall occur,
no benefit shall be
10
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payable under this Plan to any Participant who has not otherwise satisfied
the eligibility requirements of Sections 3, 4, 6 or 11, as of the date of
withdrawal. Notwithstanding the foregoing, any benefits in pay status as of
the date of withdrawal shall continue to be paid in full in accordance with
the terms hereof.
17. No Liability for Payee's Debts. Amounts payable under this Plan
------------------------------
shall not be liable for or subject to the debts or liabilities of any payee,
and no amount payable hereunder shall at any time or in any manner be
subject to anticipation, alienation, sale, transfer, assignment, pledge or
encumbrance of any kind, whether to any Participating Employer or to any
other party whomsoever, and whether with or without consideration. If any
payee shall attempt to, or shall anticipate, alienate, sell, transfer,
assign, pledge or otherwise encumber any amounts payable hereunder or any
part thereof, or if by reason of bankruptcy or other event, such amounts
would at any time be received or enjoyed by persons other than such payee,
except as otherwise permitted by this Plan, the Committee in its sole
discretion may terminate such person's interest in any such amounts and hold
or apply such amounts to or for the use of such person, his or her spouse,
children or other dependents, or any of them, as the Committee may
determine.
18. Administration. This Plan shall be administered by a Committee
--------------
composed of the Company's Chief Executive Officer, Chief Financial Officer
and Corporate Secretary. The Committee shall administer the Plan in
accordance with its terms and shall have all powers necessary to carry out
the provisions of the Plan. The Committee shall interpret the Plan; shall
determine all questions arising in the administration, interpretation, and
application of the Plan; and shall construe any ambiguity, supply any
omission, and reconcile any inconsistency in such manner and to such extent
as the Committee deems proper in its discretion. Any interpretation or
construction placed upon any term or provision of the Plan by the Committee,
any decisions and determinations of the Committee arising under the Plan,
including without limiting the generality of the foregoing: (i) the
eligibility of any individual to become or remain a Participant and a
Participant's status as such, and Eligible Earnings for any year; (ii) the
time, method and amounts of payments payable under the Plan; (iii) the
rights of Participants; and any other action or determination or decision
whatsoever taken or made by the Committee in good faith shall be final,
conclusive, and binding upon all persons concerned, including, but not
limited to, the Company, all Participating Employers and all Participants
and beneficiaries.
19. Negation of Employment Contract. This Plan does not create an
-------------------------------
employment contract and nothing contained herein shall be deemed (a) to give
a Participant the right to be retained in the employ of any Participating
Employer; (b) to interfere with the right of any Participating Employer to
discharge a Participant at any time with or without cause; (c) to give any
Participating Employer the right to require a Participant to remain in its
employ; or (d) to interfere with the right of a Participant to terminate
employment voluntarily whenever the Participant chooses.
20. Modification, Amendment, or Termination. Except as provided in
---------------------------------------
Section 11, the Company has the absolute right to modify or amend this Plan
in whole or in part, at any time and from time to time, effective as of any
specified prior, current or
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future date. Such amendment shall be made in accordance with applicable
corporate procedures then in effect for similar matters. The Company also
reserves the right to terminate this Plan, in whole or in part, voluntarily
as of any specified current or future date. This Plan shall be automatically
terminated upon a termination of the Basic Plan, a dissolution of the
Company (but not upon a merger, consolidation, reorganization or
recapitalization of the Company unless the surviving corporation therein
specifically terminates this Plan); upon the Company being legally
adjudicated a bankrupt; upon the appointment of a receiver or trustee in
bankruptcy with respect to the Company's assets and business if such
appointment is not set aside within 90 days thereafter; or upon the making
by the Company of an assignment for the benefit of creditors. Upon
termination of this Plan, no additional employee shall become eligible to
participate herein, and no additional benefits shall be accrued hereunder.
Notwithstanding the termination of this Plan, no Participant affected
thereby shall be deprived of the right to receive his or her Accrued Benefit
at the time and in the manner provided by this Plan.
21. Set Off and Withholding.
-----------------------
(a) Notwithstanding Section 17, any amount then due and
payable by the Company or any Participating Employer to any Participant or
the beneficiary of any Participant under this Plan may be offset by any
amounts owed to the Company or any Subsidiary by the Participant and/or the
beneficiary for any reason and in any capacity whatsoever, as the Company
may determine in its sole and absolute discretion.
(b) There shall be deducted from any amount payable under
this Plan all taxes required to be withheld by any federal, state or local
government. Participants and their beneficiaries shall bear any and all
federal, state, local and other income taxes and other taxes imposed on
amounts paid under the Plan, whether or not withholding is required or
carried out in accordance with this provision.
22. Claims Procedures.
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(a) The Committee shall make all decisions and
determinations respecting the right of any person to a payment under the
Plan.
(b) The following procedure shall be followed with respect
to claims under the Plan:
(i) Any claimant who believes he or she is entitled
to a benefit under this Plan shall submit a claim for such benefit in
writing to the Committee.
(ii) Any decision by the Committee denying a claim
in whole or in part shall be stated in writing by the Committee and
delivered or mailed to the claimant within ninety (90) days after receipt of
the claim by the Committee unless special circumstances require an extension
of time for processing, but in any event within one hundred eighty (180)
days after such receipt. If such an extension of time is taken, the
Committee shall inform the claimant of the delay in writing before the
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expiration of the initial ninety (90) day period, including the reasons
therefor and the date by which the Committee expects to render a decision.
Any decision denying a claim shall set forth the specific reasons for the
denial with specific references to Plan provisions on which the denial is
based, a description of any additional material or information necessary to
perfect the claim and the reasons therefor, and an explanation of the Plan's
claim review procedure, all written in a manner calculated to be understood
by the claimant. If the Committee does not notify the claimant of denial of
the claim or the need for an extension of time within the initial ninety
(90) day period, the claim shall be deemed denied.
(iii) If a claim is denied in whole or in part, the
claimant or his duly authorized representative may request a review by the
Committee of the decision upon written application to the Committee within
sixty (60) days after notification of the decision. The claimant or his duly
author