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Exhibit 4.2
DRAFT OF 11/26/96
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USX CORPORATION, Issuer
AND
PNC BANK, NATIONAL ASSOCIATION, TRUSTEE
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FIRST SUPPLEMENTAL INDENTURE
DATED AS OF DECEMBER 3, 1996
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SUPPLEMENTAL TO INDENTURE DATED AS OF MARCH 15, 1993
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This First Supplemental Indenture (the "Supplemental Indenture") is made
and entered into as of December 3, 1996 between USX Corporation, a Delaware
corporation (the "Company" or "Issuer"), and PNC Bank, a national banking
association (the "Trustee"), as Trustee under the Indenture dated as of March
15, 1993 (the "Indenture").
WHEREAS, the parties hereto previously entered into the Indenture to
provide for the issuance of one or more Series of debt securities (the "Debt
Securities"); and
WHEREAS, Section 10.01 of the Indenture provides that the Company, when
authorized by its Board of Directors, and the Trustee, may from time to time and
at any time enter into an indenture or indentures supplemental to the Indenture,
without the consent of any holder of Debt Securities, among other things, (a) to
add to the covenants of the Company, for the benefit or the protection of the
holders of any or all Series of Debt Securities (and, if such covenants are to
be for the benefit of less than all such Series, stating that such covenants are
expressly being included solely for the benefit of such Series), (b) to add to,
change or eliminate any of the provisions of the Indenture in respect of one or
more Series of Debt Securities, provided that any such addition, change or
elimination (i) shall neither (A) apply to any Debt Security of any Series
created prior to the execution of such supplemental indenture and entitled to
the benefit of such provision nor (B) modify the rights of the holder of any
such Debt Security with respect to such provision or (ii) shall become effective
only where there is no such Debt Security outstanding and (c) to set forth the
form and any terms of any Series of Debt Securities which the Company and the
Trustee deem necessary or desirable to include in a supplemental indenture; and
WHEREAS, the Company has duly authorized the creation of a series of its
Debt Securities denominated its "6 3/4% Exchangeable Notes Due February 1, 2000"
representing up to 5,483,600 of its "Debt Exchangeable for Common Stock(SM) "
(such Debt Securities being referred to herein as the "DECS(SM)"), the principal
amount of which is mandatorily exchangeable at Maturity into Common Stock, par
value $.01 per share (the "RMI Common Stock"), of RMI Titanium Company, an Ohio
corporation ("RMI"), or, at the option of the Company under certain
circumstances, cash, in either case at the Exchange Rate (as defined herein),
and/or other securities or cash as described herein; and
WHEREAS, the entry into this Supplemental Indenture by the parties hereto
is in all respects authorized by the provisions of the Indenture; and
WHEREAS the Company has duly authorized the execution and delivery of this
Supplemental Indenture, and all things necessary have been done to make the
DECS, when executed by the Company and authenticated and delivered hereunder and
duly issued by the Company, the valid obligations of the Company, and to make
this Supplemental Indenture a valid agreement of the Company, in accordance with
their and its terms.
NOW, THEREFORE:
For and in consideration of the premises and purchase of the DECS by the
holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all holders of the Debt Securities of such series, as
follows:
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ARTICLE I
CERTAIN PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of the Indenture and this Supplemental 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;
(2) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to the Indenture and this Supplemental Indenture as a whole and not
to any particular Article, Section or other subdivision; and
(3) capitalized terms used but not defined herein are used as they are
defined in the Indenture.
"Adjustment Event" means (i) any dividend or distribution by RMI to all
holders of RMI Common Stock of evidences of its indebtedness or other assets
(excluding (1) dividends or distributions referred to in Section 2.04(a)(i)(A)
hereof, (2) any common shares issued pursuant to a reclassification referred to
in Section 2.04(a)(i)(D) hereof and (3) any Ordinary Cash Dividends) or any
issuance by RMI to all holders of RMI Common Stock of rights or warrants (other
than rights or warrants referred to in Section 2.04(a)(ii) hereof), (ii) any
consolidation or merger of RMI with or into another entity (other than a merger
or consolidation in which RMI is the continuing corporation and in which the
shares of RMI Common Stock outstanding immediately prior to the merger or
consolidation are not exchanged for cash, securities or other property of RMI or
another corporation), (iii) any sale, transfer, lease or conveyance to another
corporation of the property of RMI as an entirety or substantially as an
entirety, (iv) any statutory exchange of securities of RMI with another
corporation (other than in connection with a merger or acquisition) or (v) any
liquidation, dissolution or winding up of RMI.
"Business Day" means, solely for the purposes of this Supplemental
Indenture, any day that is not a Saturday, a Sunday or a day on which the NYSE
or banking institutions or trust companies in The City of New York are
authorized or obligated by law or executive order to close.
"Closing Price" of any security on any date of determination means (a) the
closing sale price (or, if no closing sale price is reported, the last reported
sale price) of such security (regular way) on the NYSE on such date, (b) if such
security is not listed for trading on the NYSE on any such date, as reported in
the composite transactions for the principal United States securities exchange
on which such security is so listed, (c) if such security is not so listed on a
United States national or regional securities exchange, as reported by the
NASDAQ Stock Market, (d) if such security is not so reported, the last quoted
bid price for such security in the over-the-counter market as reported by the
National Quotation Bureau or similar organization or (e) if such security is not
so quoted, the average of the mid-point of the last bid and ask prices for such
security from each of at least three nationally recognized investment banking
firms selected by the Company for such purpose.
"DECS" has the meaning set forth in the recitals to this Supplemental
Indenture.
"Dilution Event" has the meaning set forth in Section 2.04(a).
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"Exchange Rate" means a rate, determined by the Company and notified to the
Trustee, equal to (a) if the Maturity Price is greater than or equal to $25.23
(the "Threshold Appreciation Price"),0.8472 shares of RMI Common Stock per DECS,
(b) if the Maturity Price is less than the Threshold Appreciation Price but is
greater than the Initial Price, (i) a fraction equal to the Initial Price
divided by the Maturity Price of (ii) one share of RMI Common Stock per DECS
(such fractional share being calculated to the nearest 1/10,000th of a share or,
if there is not a nearest 1/10,000th of a share, to the next lower 1/10,000th of
a share) and (c) if the Maturity Price is less than or equal to the Initial
Price, one share of RMI Common Stock per DECS; provided, however, that the
Exchange Rate is subject to adjustment from time to time pursuant to Section
2.04.
"holder" has the meaning set forth in Section 1.01 of the Indenture.
"Initial Price" means $21.375 per share of RMI Common Stock.
"Market Price" means, as of any date of determination, the average Closing
Price per share of RMI Common Stock for the 20 Trading Days immediately prior to
the date of determination; provided, however, that if there are not 20 Trading
Days for the RMI Common Stock occurring later than the 60th calendar day
immediately prior to, but not including, such date, the Market Price shall be
determined as the market value per share of RMI Common Stock as of such date as
determined by a nationally recognized investment banking firm retained for such
purpose by the Company.
"Maturity Price" means the average Closing Price per share of RMI Common
Stock for the 20 Trading Days immediately prior to, but not including, the date
of Maturity, which price shall be determined by the Company and notified to the
Trustee; provided, however, that if there are not 20 Trading Days for the RMI
Common Stock occurring later than the 60th calendar day immediately prior to,
but not including, the date of Maturity, Maturity Price means the market value
per share of RMI Common Stock as of the date of Maturity as determined by a
nationally recognized investment banking firm retained for such purpose by the
Company; provided, further, that the Maturity Price is subject to adjustment
from time to time as set forth in Section 2.04(a)(iv).
"NYSE" means the New York Stock Exchange, Inc.
"Ordinary Cash Dividend" has the meaning set forth in Section 2.04(b)(5).
"Reported Securities" means securities (A)(i) that are listed on a United
States national securities exchange, (ii) that are reported on a United States
national securities system subject to last sale reporting, (iii) that are traded
in the over-the-counter market and reported on the National Quotation Bureau or
similar organization or (iv) for which bid and ask prices are available from at
least three nationally recognized investment banking firms and (B) that are
either (x) perpetual equity securities or (y) non-perpetual equity securities or
debt securities with a stated maturity after the Stated Maturity of the DECS.
"RMI Common Stock" has the meaning set forth in the recitals to this
Supplemental Indenture.
"Share Components" means the ratios of shares of RMI Common Stock per DECS
specified in clauses (a), (b)(ii) and (c) of the definition of "Exchange Rate"
set forth in this Article.
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"Threshold Appreciation Price" has the meaning specified in the definition
of "Exchange Rate" set forth in this Article.
"Trading Day" means a Business Day on which the security, the Closing Price
of which is being determined, (a) is not suspended from trading on any national
or regional securities exchange or association or over-the-counter market at the
close of business and (b) has traded at least once on the national or regional
securities exchange or association or overthe-counter market that is the primary
market for the trading of such security.
"Transaction Value" means (a) for any cash received in any Adjustment
Event, the amount of cash received per share of RMI Common Stock, (b) for any
Reported Securities received in any Adjustment Event, an amount equal to (x) the
average Closing Price per security of such Reported Securities for the 20
Trading Days immediately prior to Maturity multiplied by (y) the number of such
Reported Securities (as adjusted pursuant to Section 2.04(b)(4)) received per
share of RMI Common Stock and (c) for any property received in any Adjustment
Event other than cash or such Reported Securities, an amount equal to the fair
market value of the property received per share of RMI Common Stock on the date
such property is received, as determined by a nationally recognized investment
banking firm retained for this purpose by the Company; provided, however, that
in the case of clause (b), (i) with respect to securities that are Reported
Securities by virtue of only clause A(iv) of the definition of Reported
Securities, Transaction Value with respect to any such Reported Security means
the average of the mid-point of the last bid and ask prices for such Reported
Security as of Maturity from each of at least three nationally recognized
investment banking firms retained for such purpose by the Company multiplied by
the number of such Reported Securities (as adjusted pursuant to Section
2.04(b)(4)) received per share RMI Common Stock and (ii) with respect to all
other Reported Securities, if there are not 20 Trading Days for any particular
Reported Security occurring later than the 60th calendar day immediately prior
to, but not including, the date of Maturity, Transaction Value with respect to
such Reported Security means the market value per security of such Reported
Security as of Maturity as determined by a nationally recognized investment
banking firm retained for such purpose by the Company multiplied by the number
of such Reported Securities (as adjusted pursuant to Section 2.04(b)(4))
received per share of RMI Common Stock. For purposes of calculating Transaction
Value, any cash, Reported Securities or other property receivable in an
Adjustment Event shall be deemed to have been received immediately prior to the
close of business on the record date for such Adjustment Event or, if there is
no record date for such Adjustment Event, immediately prior to the close of
business on the effective date of such Adjustment Event.
SECTION 1.02. Effect of Headings.
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
SECTION 1.03. Successors and Assigns.
All covenants and agreements in this Supplemental Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
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SECTION 1.04. Separability.
In case any provision in this Supplemental Indenture or the DECS 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 1.05. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Supplemental Indenture
by any of the provisions of the Trust Indenture Act of 1939, as amended, such
required provision shall control.
SECTION 1.06. Benefits of Supplemental Indenture.
Nothing in this Supplemental Indenture, expressed or implied, shall give to
any person, other than the parties hereto and their successors hereunder, and
the holders of the DECS any benefit or any legal or equitable right, remedy or
claim under this Supplemental Indenture.
SECTION 1.07. Application of Supplemental Indenture.
This Supplemental Indenture shall take effect on the date hereof, and shall
apply only to the DECS. This Supplemental Indenture shall have no effect on any
other Debt Securities, whether originally issued prior to the date hereof or
thereafter.
SECTION 1.08. Governing Law.
THIS SUPPLEMENTAL INDENTURE AND THE DECS SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND THIS SUPPLEMENTAL INDENTURE AND
EACH SUCH DECS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
ARTICLE II
THE DECS
SECTION 2.01. Title and Terms.
There is hereby created under the Indenture a series of Debt Securities
known and designated as the "6 3/4% Exchangeable Notes Due February 1, 2000" of
the Company. The aggregate principal amount of DECS that may be authenticated
and delivered under this Indenture is limited to $117,211,950, except for DECS
authenticated and delivered upon reregistration of, transfer of, or in exchange
for, or in lieu of, other DECS pursuant to Sections 2.08, 2.09, 2.11 or 10.04 of
the Indenture.
The Stated Maturity for payment of principal of the DECS shall be February
1, 2000 and the DECS shall bear interest on the principal amount at the rate of
6 3/4% per annum, from the date of original issuance or the most recent Interest
Payment Date to which interest has been paid or duly provided for, payable
quarterly in arrears on February 1, May 1, August 1 and November 1 of each year
(commencing February 1, 1997), to the persons in whose names the DECS (or any
predecessor securities) are registered at the close of business on the 15th day
of the calendar month immediately preceding such Interest Payment Date, provided
that interest payable at Maturity shall be payable to the person to whom the
principal is payable.
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The DECS shall be issuable in denominations of $21.375 and any integral
multiple thereof.
The DECS shall be initially issued in the form of a Global Security and the
Depositary for the DECS shall be The Depository Trust Company, New York, New
York.
The DECS shall not be redeemable prior to their Stated Maturity. The DECS
shall not be subject to any sinking fund.
The Company shall not be obligated to pay any additional amount on the DECS
in respect of taxes, except as otherwise provided in Sections 2.06 and 3.01
hereof.
The form of DECS attached hereto as Exhibit A is hereby adopted, pursuant
to Section 10.01(f) of the Indenture, as a form of Debt Securities of a Series
that consists of DECS.
The DECS shall be mandatorily exchangeable as provided in Section 2.02
hereof.
SECTION 2.02. Exchange at Maturity.
Subject to Section 2.04, at Maturity the principal amount of each DECS
shall be mandatorily exchanged by the Company into a number of shares of RMI
Common Stock (or the equivalent amount of cash, as provided below) at the
Exchange Rate; provided, however, that, pursuant to Section 2.03, no fractional
shares of RMI Common Stock shall be issued. The holders of the DECS shall be
responsible for the payment of any and all brokerage costs upon the subsequent
sale of such shares. The Company may, at its option, in lieu of delivering
shares of RMI Common Stock, deliver cash in an amount (calculated to the nearest
1/100th of a dollar per DECS or, if there is not a nearest 1/100th of a dollar,
then to the next higher 1/ 100th of a dollar) equal to the product of the number
of shares of RMI Common Stock otherwise deliverable on the date of Maturity
multiplied by the Maturity Price; provided, however, that if such option is
exercised, the Company shall deliver cash with respect to all, but not less than
all, of the RMI Common Stock that would otherwise be deliverable, except to
those holders with respect to whom it has determined delivery of cash may
violate applicable state law and as to whom it will deliver shares of RMI Common
Stock as provided herein. In determining the amount of cash deliverable in
exchange for the DECS in lieu of shares of RMI Common Stock pursuant to the
prior sentence hereof, if more than one DECS shall be surrendered for exchange
at one time by the same holder, the amount of cash which shall be delivered upon
exchange shall be computed on the basis of the aggregate number of DECS so
surrendered at Maturity.
SECTION 2.03. No Fractional Shares.
If more than one DECS shall be surrendered for exchange pursuant to Section
2.02 at one time by the same holder, the number of full shares of RMI Common
Stock or Reported Securities which shall be delivered upon such exchange, in
whole or in part, as the case may be, shall be computed on the basis of the
aggregate number of DECS surrendered. No fractional shares or scrip representing
fractional shares of RMI Common Stock or Reported Securities shall be issued or
delivered upon any exchange pursuant to Section 2.02 of any DECS. In lieu of any
fractional shares of RMI Common Stock which, but for the immediately preceding
sentence, would otherwise be deliverable upon such exchange, the Company,
through any applicable Paying Agent, shall make a cash payment in respect of
such fractional interest in an amount equal to the value of such fractional
share at the Maturity Price. The
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Company shall, upon such exchange of any DECS, provide cash to any applicable
Paying Agent in an amount equal to the cash payable with respect to any
fractional shares of RMI Common Stock or Reported Security deliverable upon such
exchange, and the Company shall retain such fractional shares of RMI Common
Stock or Reported Securities.
SECTION 2.04. Adjustment of Exchange Rate.
(a) Adjustment for Distributions, Reclassifications, etc. The Exchange Rate
shall be subject to adjustment from time to time as follows:
(i) If RMI shall, after the date hereof:
(A) pay a stock dividend or make a distribution, in each case,
with respect to RMI Common Stock in shares of RMI Common Stock;
(B) subdivide or split the outstanding shares of RMI Common Stock
into a greater number of shares;
(C) combine the outstanding shares of RMI Common Stock into a
smaller number of shares; or
(D) issue by reclassification (other than a reclassification
pursuant to clause (ii), (iii), (iv) or (v) of the definition of
Adjustment Event) of its shares of RMI Common Stock any shares of
common stock of RMI;
(each of the foregoing, together with the event described in paragraph (a)(ii)
of this Section, a "Dilution Event") then, in any such event, the Exchange
Rate shall be adjusted by adjusting each of the Share Components of the
Exchange Rate in effect immediately prior to such event so that a holder of
any DECS shall be entitled to receive, upon mandatory exchange of the
principal amount of such DECS at Maturity, the number of shares of RMI Common
Stock (or, in the case of a reclassification referred to in clause (D) of this
sentence, the number of other common shares of RMI issued pursuant to such
reclassification) which such holder of such DECS would have owned or been
entitled to receive immediately following such event had such DECS been
exchanged immediately prior to such event or any record date with respect
thereto. Each such adjustment shall become effective at the opening of
business on the Business Day next following the record date for determination
of holders of RMI Common Stock entitled to receive such dividend or
distribution in the case of a dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision,
split, combination or reclassification. Each such adjustment shall be made
successively.
(ii) If RMI shall, after the date hereof, issue rights or warrants to all
holders of RMI Common Stock entitling them to subscribe for or purchase shares
of RMI Common Stock (other than rights to purchase RMI Common Stock pursuant
to a plan for the reinvestment of dividends or interest) at a price per share
less than the Market Price of RMI Common Stock on the Business Day next
following the record date for the determination of holders of RMI Common Stock
entitled to receive such rights or warrants, then in each case the Exchange
Rate shall be adjusted by multiplying each of the Share Components of the
Exchange Rate in effect on the record date for the issuance of such rights or
warrants by a fraction, of which the numerator shall be (A) the number of
shares of RMI Common Stock outstanding on the record date for the issuance of
such rights or warrants, plus (B) the number of additional shares of RMI
Common Stock offered for subscription or purchase
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pursuant to such rights or warrants, and of which the denominator shall be (x)
the number of shares of RMI Common Stock outstanding on the record date for
the issuance of such rights or warrants, plus (y) the number of additional
shares of RMI Common Stock which the aggregate offering price of the total
number of shares of RMI Common Stock so offered for subscription or purchase
pursuant to such rights or warrants would purchase at the Market Price of the
RMI Common Stock on the Business Day next following the record date for the
determination of holders of RMI Common Stock entitled to receive such rights
or warrants, which number of additional shares shall be determined by
multiplying such total number of shares by the exercise price of such rights
or warrants and dividing the product so obtained by such Market Price. Such
adjustment shall become effective at the opening of business on the Business
Day next following the record date for the determination of holders of RMI
Common Stock entitled to receive such rights or warrants. To the extent that
such rights or warrants expire prior to the Maturity of the DECS and shares of
RMI Common Stock are not delivered pursuant to such rights or warrants prior
to such expiration, the Exchange Rate shall be readjusted to the Exchange Rate
which would then be in effect had such adjustments for the issuance of such
rights or warrants been made upon the basis of delivery of only the number of
shares of RMI Common Stock actually delivered pursuant to such rights or
warrants. Each such adjustment shall be made successively.
(iii) Any shares of RMI Common Stock issuable in payment of a dividend shall
be deemed to have been issued immediately prior to the close of business on
the record date for such dividend for purposes of calculating the number of
outstanding shares of RMI Common Stock under paragraph (a)(ii) of this
Section.
(iv) All adjustments to the Exchange Rate shall be calculated to the nearest
1/10,000th of a share of RMI Common Stock (or if there is not a nearest
1/10,000th of a share, to the next lower 1/10,000th of a share). No adjustment
in the Exchange Rate shall be required unless such adjustment would require an
increase or decrease of at least one percent therein; provided, however, that
any adjustments which by reason of this paragraph (a)(iv) are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment.
If an adjustment is made to the Exchange Rate pursuant to paragraphs (a)(i)
or (a)(ii) of this Section, an adjustment shall also be made to the Maturity
Price as such term is used to determine which of clauses (a), (b) or (c) of the
definition of "Exchange Rate" will apply at Maturity and for purposes of
calculating the fraction in sub-clause (b)(i) of the definition of Exchange
Rate. The required adjustment to the Maturity Price shall be made at Maturity by
multiplying the Maturity Price by the cumulative number or fraction determined
pursuant to the Share Component adjustment procedure described above. In the
case of the reclassification of any shares of RMI Common Stock into any common
stock of RMI other than RMI Common Stock, such common stock shall be deemed RMI
Common Stock solely to determine the Maturity Price and to apply the Exchange
Rate at Maturity. Each such adjustment to the Exchange Rate and the Maturity
Price shall be made successively.
(b) Other Adjustment Events. If an Adjustment Event occurs, the property
receivable by holders of DECS at Maturity shall be subject to adjustment from
time to time as follows:
(1) Each holder of a DECS will receive at Maturity, in lieu of or (in
the case of an Adjustment Event described in clause (i) of the definition
thereof) in addition to, each share of RMI Common Stock that it would
otherwise receive as required by Section 2.02,
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cash in an amount equal to (A) if the Maturity Price is greater than or
equal to the Threshold Appreciation Price, 0.8472 multiplied by the
Transaction Value, (B) if the Maturity Price is less than the Threshold
Appreciation Price but greater than the Initial Price, the product of (x)
the Initial Price divided by the Maturity Price multiplied by (y) the
Transaction Value and (C) if the Maturity Price is less than or equal to
the Initial Price, the Transaction Value.
(2) Following an Adjustment Event, the Maturity Price, as such term is
used throughout the definition of Exchange Rate and in subparagraph (b)(1)
above, shall be deemed to equal (A) the Maturity Price of the shares of the
RMI Common Stock, as adjusted pursuant to the provisions of paragraph
(a)(iv) of this Section, plus (B) the Transaction Value.
(3) Notwithstanding the foregoing, with respect to any Reported
Securities received in such Adjustment Event, the Company may, at its
option, in lieu of delivering the amount of cash deliverable in respect of
Reported Securities received in an Adjustment Event, determined in
accordance with subparagraph (b)(1), deliver a number of such Reported
Securities with a value equal to such cash amount, as determined in
accordance with clause (b) of the definition of Transaction Value, as
applicable; provided, however, that (i) if such option is exercised, the
Company shall deliver Reported Securities in respect of all, but not less
than all, cash amounts that would otherwise be deliverable in respect of
Reported Securities received in an Adjustment Event, (ii) the Company may
not exercise such option if the Company has elected to deliver cash in lieu
of the shares of RMI Common Stock, if any, deliverable upon Maturity or if
such Reported Securities have not yet been delivered to the holders
entitled thereto following such Adjustment Event or any record date with
respect thereto and (iii) subject to clause (ii) of this proviso, the
Company must exercise such option if the Company does not elect to deliver
cash in lieu of the shares of RMI Common Stock, if any, deliverable upon
Maturity. If the Company elects to deliver Reported Securities, each holder
of a DECS will be responsible for the payment of any and all brokerage and
other transaction costs upon the sale of such Reported Securities. If,
following any Adjustment Event, any Reported Security ceases to qualify as
a Reported Security, then (x) the Company may no longer elect to deliver
such Reported Security in lieu of an equivalent amount of cash and (y)
notwithstanding clause (b) of the definition of Transaction Value, the
Transaction Value of such Reported Security shall mean the fair market
value of such Reported Security on the date such security ceases to qualify
as a Reported Security, as determined by a nationally recognized investment
banking firm retained for this purpose by the Company.
(4) The amount of cash and/or the kind and number of securities into
which the DECS shall be exchangeable after an Adjustment Event shall be
subject to adjustment following the date of such Adjustment Event in the
same manner and upon the occurrence of the same type of events as described
in paragraphs (a) and (b) of this Section with respect to shares of RMI
Common Stock and RMI.
(5) For purposes of the foregoing, the term "Ordinary Cash Dividend"
means, with respect to any consecutive 365-day period, any dividend with
respect to RMI Common Stock paid in cash to the extent that the amount of
such dividend, together with the aggregate amount of all other dividends on
the RMI Common Stock paid in cash during such 365-day period, does not
exceed on a per share basis 10% of the average of the Closing Prices of RMI
Common Stock over such 365-day period.
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SECTION 2.05. Notice of Adjustments and Certain Other Events.
(a) Whenever the Exchange Rate is adjusted as herein provided or an
Adjustment Event occurs, the Company shall:
(i) forthwith compute the adjusted Exchange Rate (or Transaction
Value) in accordance with Section 2.04 and prepare a certificate signed by
an officer of the Company setting forth the adjusted Exchange Rate (or
Transaction Value), the method of calculation thereof in reasonable detail
and the facts requiring such adjustment and upon which such adjustment is
based, which certificate shall be conclusive, final and binding evidence of
the correctness of the adjustment, and file such certificate forthwith with
the Trustee; and
(ii) within ten Business Days following the occurrence of a
Dilution Event or an Adjustment Event that permits or requires a change in
the consideration to be received by holders pursuant to Section 2.04(b)
(or, in either case, if the Company is not aware of such occurrence, as
soon as practicable after becoming so aware), provide written notice to the
Trustee and to the holders of the outstanding DECS of the occurrence of
such Dilution Event or Adjustment Event, including a statement in
reasonable detail setting forth the method by which any adjustment to the
Exchange Rate or change in the consideration to be received was determined
and setting forth the revised Exchange Rate or consideration, as the case
may be, per DECS; provided, however, that in respect of any adjustment to
the Maturity Price, such notice need only disclose the factor by which the
Maturity Price is to be multiplied pursuant to Section 2.04(a)(iv) in order
to determine which clause of the definition of the Exchange Rate will apply
at Maturity, it being understood that, until Maturity, the Exchange Rate
itself cannot be determined.
(b) In case at any time while any of the DECS are outstanding the Company
receives notice that:
(i) RMI shall declare a dividend (or any other distribution) on
or in respect of the RMI Common Stock to which Section 2.04(a)(i) or (ii)
shall apply (other than any cash dividends and distributions, if any, paid
from time to time by RMI that constitute Ordinary Cash Dividends);
(ii) RMI shall authorize the issuance to all holders of RMI
Common Stock of rights or warrants to subscribe for or purchase shares of
RMI Common Stock or of any other subscription rights or warrants;
(iii) there shall occur any conversion or reclassification of
RMI Common Stock (other than a subdivision or combination of such
outstanding shares of RMI Common Stock) or any consolidation, merger or
reorganization to which RMI is a party and for which approval of any
stockholders of RMI is required, or the sale or transfer of all or
substantially all of the assets of RMI; or
(iv) there shall occur the voluntary or involuntary dissolution,
liquidation or winding up of RMI;
then the Company shall promptly cause to be delivered to the Trustee and any
applicable Paying Agent and filed at the office or agency maintained for the
purpose of exchange of DECS at Maturity in Pittsburgh, Pennsylvania by the
Trustee (or any applicable Paying Agent), and shall promptly cause to be
mailed to the holders of DECS at their last addresses
-10-
12
as they shall appear upon the registration books of the Debt Securities
registrar, at least ten days before the date hereinafter specified (or the
earlier of the dates hereinafter specified, in the event that more than one is
specified), a notice stating (x) the date on which a record is to be taken for
the purpose of such dividend, distribution or grant of rights or warrants or,
if a record is not to be taken, the date as of which the holders of RMI Common
Stock of record to be entitled to such dividend, distribution or grant of
rights or warrants are to be determined, or (y) the date, if known by the
Company, on which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up is expected to become
effective. Following any Adjustment Event, the provisions of this paragraph
(b) shall apply with respect to any Reported Securities in the same manner as
with respect to RMI and the RMI Common Stock.
(c) On or prior to the fourth Business Day preceding the Stated Maturity of
the DECS, the Company shall provide notice to the holders of record of the
DECS and to the Trustee and will publish a notice in a daily newspaper of
national circulation stating whether the Company will deliver, in accordance
with Section 2.02, shares of RMI Common Stock or cash (and/or, in accordance
with Section 2.04(b), cash or Reported Securities) upon the mandatory exchange
of the principal amount of the DECS; provided, however, in the event the
Company intends to deliver cash, the Company shall have the right to require
certification as to the domicile and residency of each beneficial holder of
DECS, as a condition to delivery of such cash. After the close of business on
the Business Day immediately preceding the Stated Maturity of the DECS, the
Company shall notify the Trustee in writing of the number of shares of RMI
Common Stock and/or Reported Securities, or the amount of cash to be paid per
DECS.
SECTION 2.06. Taxes.
(a) The Company will pay any and all documentary, stamp, transfer or
similar taxes that may be payable in respect of the transfer and delivery of RMI
Common Stock (or Reported Securities) pursuant hereto; provided, however, that
the Company shall not be required to pay any such tax which may be payable in
respect of any transfer involved in the delivery of RMI Common Stock (or
Reported Securities) in a name other than that in which the DECS so exchanged
were registered, and no such transfer or delivery shall be made unless and until
the person requesting such transfer has paid to the Company the amount of any
such tax, or has established, to the satisfaction of the Company, that such tax
has been paid.
(b) The parties hereto hereby agree, and each holder of a DECS by its
purchase of a DECS hereby agrees (in the absence of an administrative
determination or judicial ruling to the contrary):
(i) to treat, for U.S. federal income tax purposes, each DECS as a
forward purchase contract to purchase RMI Common Stock at Maturity
(including as a result of acceleration or otherwise) (the "forward purchase
contract characterization"), under the terms of which contract (a) at the
time of issuance of the DECS the holder deposits irrevocably with the
Company a fixed amount of cash equal to the purchase price of the DECS to
assure the fulfillment of the holder's purchase obligation described in
clause (c) below, which deposit will unconditionally and irrevocably be
applied at Maturity to satisfy such obligation, (b) until Maturity the
Company will be obligated to pay interest on such deposit at a rate equal
to the stated rate of interest on the DECS as compensation to the holder
for the Company's use of such cash deposit during the term of the DECS,
-11-
13
and (c) at Maturity such cash deposit unconditionally and irrevocably will
be applied by the Company in full satisfaction of the holder's obligation
under the forward purchase contract, and the Company will deliver to the
holder the number of shares of RMI Common Stock that the holder is entitled
to receive at that time pursuant to the terms of the DECS (subject to the
Company's right to deliver cash in lieu of shares of RMI Common Stock);
(ii) to treat, consistent with the above characterization, (x) amounts
paid to the Company in respect of the original issue of a DECS as allocable
in their entirety to the amount of the cash deposit attributable to such
DECS, and (y) amounts denominated as interest that are payable with respect
to the DECS as interest payable on the amount of such deposit, includible
annually in the income of the holder as interest income in accordance with
its method of accounting; and
(iii) to file all U.S. federal, state and local income and franchise
tax returns consistent with the forward purchase contract characterization
(unless required otherwise by an applicable taxing authority).
SECTION 2.07. Delivery of Securities upon Maturity.
All shares of RMI Common Stock and Reported Securities deliverable to
holders upon the Maturity of the DECS shall be delivered to such holders,
whenever practicable, in such manner (such as by book-entry transfer) so as to
assure same-day transfer of such securities to holders and otherwise in the
manner customary at such time for delivery of such securities and securities of
the same type.
ARTICLE III
COVENANTS
SECTION 3.01. Shares Free and Clear.
With respect to the DECS only and for the benefit of only the holders
thereof, the Company covenants and warrants, unless the Company elects to
deliver cash in lieu of RMI Common Stock, that upon exchange of a DECS at
Maturity pursuant to the Indenture and this Supplemental Indenture, the holder
of a DECS shall receive good and valid title to the RMI Common Stock and, in the
event an Adjustment Event has occurred, the Reported Securities (unless the
Company elects to deliver cash in lieu of Reported Securities) for which such
DECS is at such time exchangeable pursuant to this Indenture, free and clear of
all liens, encumbrances, equities and claims whatsoever. Except as provided in
Section 2.06(a), the Company shall pay all taxes and charges with respect to the
delivery of RMI Common Stock (and Reported Securities) delivered in exchange for
DECS hereunder. In addition, the Company further warrants that any shares of RMI
Common Stock (and Reported Securities) delivered in exchange for DECS hereunder
shall be free of any transfer restrictions (other than such as are solely
attributable to any holder's status as an affiliate of RMI or the issuer of such
Reported Securities).
SECTION 3.02. Discharge of Indenture.
The provisions of Sections 12.02(b) and 12.02(c) of the Indenture with
respect to the DECS shall not be applicable.
-12-
14
SECTION 3.03. Change in Control.
The provisions of Sections 4.07, 4.08 and 4.09 of the Indenture with
respect to Change in Control of the Company shall not be applicable with respect
to the DECS.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Confirmation of Indenture.
The Indenture, as supplemented and amended by this Supplemental Indenture
and all other indentures supplemental thereto, is in all respects ratified and
confirmed, and the Indenture, this Supplemental Indenture and all indentures
supplemental thereto shall be read, taken and construed as one and the same
instrument.
SECTION 4.02. Concerning the Trustee.
The Trustee assumes no duties, responsibilities or liabilities by reason of
this Supplemental Indenture other than as set forth in the Indenture.
---------------------------------
This Supplemental Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
-13-
15
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
USX CORPORATION
By:
-----------------------------------
Name:
Title:
Attest:
-----------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
-----------------------------------
Name:
Title:
Attest:
-----------------------------------
Name:
Title:
-14-
00
XXXXXXXXXXXX XX XXXXXXXXXXXX
XXXXXX XX XXXXXXXXX
Xx the day of December, 1996, before me personally came
, to me known, who, being by me duly sworn, did depose and
say that she/he is the of USX CORPORATION, one of the parties
described in and which executed the above instrument; that she/he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the board of directors of said
corporation, and that she/he signed her/his name thereto by like authority.
-------------------------------------
NOTARY PUBLIC
XXXX
XXXXXXXXXXXX XX XXXXXXXXXXXX
XXXXXX XX XXXXXXXXX
Xx the th day of November, 1996, before me personally came
, to me known, who, being by me duly sworn, did depose and
say that he is the of PNC Bank, National Association, one of the
corporations described in and which executed the above instrument; that she/he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the board of
directors of said corporation, and that she/he signed her/his name thereto by
like authority.
-------------------------------------
NOTARY PUBLIC
SEAL
SS.:
SS.:
17
EXHIBIT A
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of the Depositary or a
nominee of a Depositary. This Security is exchangeable for Securities registered
in the name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Indenture, and may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary.
Unless this Security is presented by an authorized representative of The
Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the Company or
its agent for registration of transfer, exchange or payment, and any security
issued is registered in the name of Cede & Co., or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede &
Co., has an interest herein.
NO. CUSIP NO.
[FORM OF FACE OF DECS]
USX CORPORATION
DECSSM
(DEBT EXCHANGEABLE FOR COMMON STOCKSM)
6 3/4% EXCHANGEABLE NOTE DUE FEBRUARY 1, 2000
(Subject to Exchange at Maturity into Common Stock,
Par Value $.01 Per Share, of RMI Titanium Company)
USX Corporation, a corporation duly organized and existing under the laws
of Delaware (hereinafter called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to Cede & Co., or registered assigns, the principal sum
of Dollars (or $21.375 for each Debt Exchangeable for Common Stock
(each, a "DECS") represented by this note) on February 1, 2000 (subject to the
mandatory exchange provisions at Maturity described below), and to pay interest
thereon (computed on the basis of a 360-day year of twelve 30-day months) on
such principal amount from the date of original issuance or from the most recent
Interest Payment Date (as defined below) to which interest has been paid or duly
provided for, quarterly in arrears on February 1, May 1, August 1 and November 1
of each year (each, an "Interest Payment Date" and, collectively, the "Interest
Payment Dates"), commencing February 1, 1997, at the rate per annum specified in
the title of this note, until the principal hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this DECS (or the DECS in exchange or substitution for
which this DECS was issued) is registered at the close of business on the
Regular Record Date (as defined below) for interest payable on such Interest
Payment Date. The Regular Record Date for any interest payment is the close of
business on the 15th day of the calendar month immediately preceding the
relevant Interest Payment Date, whether or not a Business Day (as defined
below),
18
provided that interest payable at Maturity shall be payable to the person to
whom the principal hereof is payable. In any case where such Interest Payment
Date shall be a day, in the City of Pittsburgh or The City of New York, that is
a Sunday or a legal holiday or a day on which banking institutions are
authorized to close, then (notwithstanding any other provision of said Indenture
or this DECS) payment of such interest 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 such Interest Payment Date, and, if such payment is so made, no interest
shall accrue for the period from and after such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the holder on such Regular Record Date, and may either be paid to the
Person in whose name this DECS (or the DECS in exchange or substitution for
which this DECS was issued) 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 the DECS not less than 15
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 DECS may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
At Maturity, the principal amount of this DECS will be mandatorily
exchanged into a number of shares of common stock, par value $.01 per share (the
"RMI Common Stock"), of RMI Titanium Company ("RMI") at the Exchange Rate (as
defined below) or an equivalent amount of cash. The "Exchange Rate" is equal to
(a) if the Maturity Price (as defined below) is greater than or equal to $25.23
(the "Threshold Appreciation Price"), 0.8472 shares of RMI Common Stock per
DECS, (b) if the Maturity Price is less than the Threshold Appreciation Price
but is greater than $21.375 (the "Initial Price"), (i) a fraction equal to the
Initial Price divided by the Maturity Price of (ii) one share of RMI Common
Stock per DECS (such fractional share being calculated to the nearest 1/10,000th
of a share or, if there is not a nearest 1/10,000th of a share, to the next
lower 1/10,000th of a share) and (c) if the Maturity Price is less than or equal
to the Initial Price, one share of RMI Common Stock per DECS. ACCORDINGLY, THE
VALUE OF THE SHARES OF RMI COMMON STOCK TO BE RECEIVED BY HOLDERS OF THE DECS
(OR, AS DISCUSSED BELOW, THE CASH EQUIVALENT THAT MAY BE RECEIVED IN LIEU OF
SUCH SHARES) AT MATURITY WILL NOT NECESSARILY EQUAL THE PRINCIPAL AMOUNT OF SUCH
DECS. Any shares of RMI Common Stock delivered by the Company to the holders of
the DECS that are not affiliated with RMI shall be free of any transfer
restrictions, and the holders of DECS will be responsible for the payment of any
and all brokerage costs upon the subsequent sale of such shares. No fractional
shares of RMI Common Stock will be issued at Maturity as provided in the
Indenture.
The Company may at its option, in lieu of delivering shares of RMI Common
Stock, deliver cash in an amount equal to the value of such number of shares of
RMI Common Stock at the Maturity Price as provided in the Indenture; provided,
however, that if such option is exercised, the Company shall deliver cash with
respect to all, but not less than all, of the shares of RMI Common Stock that
would otherwise be deliverable, except to those holders with respect to whom it
has determined delivery of cash may violate applicable state law and as to whom
it will deliver shares of RMI Common Stock as provided herein.
Notwithstanding the foregoing, (i) in the case of certain Dilution Events,
the Exchange Rate and the Maturity Price will be subject to adjustment and (ii)
in the case of certain
F-2
19
Adjustment Events, the consideration received by holders of DECS at Maturity
will be shares of RMI Common Stock, other securities and/or cash, each as
provided in the Indenture.
The "Maturity Price" is defined as the average Closing Price per share of
RMI Common Stock for the 20 Trading Days immediately prior to (but not
including) the date of Maturity or, under certain circumstances, the market
value per share of RMI Common Stock as of the date of Maturity as determined by
a nationally recognized investment banking firm retained for this purpose by the
Company, as provided in the Indenture. The "Closing Price" of any security on
any date of determination means (i) the closing sale price (or, if no closing
sale price is reported, the last reported sale price) of such security (regular
way) on the New York Stock Exchange (the "NYSE") on such date, (ii) if such
security is not listed for trading on the NYSE on any such date, as reported in
the composite transactions for the principal United States securities exchange
on which such security is so listed, (iii) if such security is not so listed on
a United States national or regional securities exchange, as reported by the
Nasdaq Stock Market, (iv) if such security is not so reported, the last quoted
bid price for such security in the over-the-counter market as reported by the
National Quotation Bureau or similar organization or (v) if such security is not
so quoted, the average of the mid-point of the last bid and ask prices for such
security from each of at least three nationally recognized investment banking
firms selected for such purpose by the Company. A "Trading Day" means a Business
Day on which the security the Closing Price of which is being determined (i) is
not suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (ii) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of such security. "Business Day" means any day that is not a Saturday, a
Sunday or a day on which the NYSE or banking institutions or trust companies in
The City of New York, New York are authorized or obligated by law or executive
order to close.
Interest on this DECS will be payable, and delivery of shares of RMI Common
Stock (or, at the Company's option, cash in an amount equal to the value of such
RMI Common Stock and/or such other consideration as permitted or required
herein) in exchange for the principal amount of this DECS at Maturity will be
made upon surrender of this DECS, at the office or agency of the Company
maintained for that purpose in Pittsburgh, Pennsylvania and payment of interest
on (and, if the Company elects not to deliver RMI Common Stock and/or other
securities upon exchange at Maturity, the cash equivalent thereof payable upon
exchange for the principal amount of) this DECS will be made in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company, payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear on the
register for the DECS.
Reference is hereby made to the further provisions of this DECS set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee referred to on the reverse hereof by manual signature,
this DECS shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose. "DECS" and "Debt Exchangeable for Common Stock"
are service marks of Salomon Brothers Inc.
F-3
20
IN WITNESS WHEREOF, USX Corporation has caused this instrument to be duly
executed under its corporate seal.
Dated: USX CORPORATION
By:
-----------------------------------
Name:
Title:
Attest:
Name:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated therein referred to in
the within-mentioned Indenture.
PNC BANK, NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------------
Authorized Officer
F-4
21
[FORM OF REVERSE OF DECS]
USX CORPORATION
6 3/4% EXCHANGEABLE NOTE DUE FEBRUARY 1, 2000
(Subject to Exchange at Maturity into Common Stock,
Par Value $.01 Per Share, of RMI Titanium Company)
This DECS is one of a duly authorized issue of securities of the Company
(hereinafter called the "Securities") issued and to be issued in one or more
Series under an Indenture, dated as of March 15, 1993, as supplemented by the
First Supplemental Indenture dated December 3, 1996 (as so supplemented and as
may be further supplemented from time to time, the "Indenture") between the
Company and PNC Bank, National Association, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all other indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitation of rights,
duties and immunities thereunder of the Company, the Trustee and the holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This DECS is one of a Series of the Securities
designated on the face hereof, limited in aggregate principal amount to
$ .
The DECS may not be redeemed and are not entitled to the benefit of any
sinking fund.
The provisions of Sections 12.02(b) and 12.02(c) of the Indenture with
respect to defeasance of the Debt Securities of a Series and covenant defeasance
of the Debt Securities of a Series, respectively, shall not be applicable to the
DECS, as provided in a supplement to the Indenture.
The provisions of Sections 4.07, 4.08 and 4.09 of the Indenture with
respect to a Change in Control of the Company shall not be applicable to the
DECS.
If an Event of Default with respect to the DECS shall occur and be
continuing, the principal of all DECS may be declared due and payable and
therefore will result in the mandatory exchange of the principal amount thereof
for RMI Common Stock (or, at the Company's option, cash and/or such other
consideration as permitted or required herein), all in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee to
modify the Indenture or any supplemental indenture without the consent of the
holders of the Securities in regard to matters including, without limitation,
the following: (a) to evidence the succession of another corporation to the
Company; (b) to add to the covenants of the Company further covenants,
restrictions, conditions or provisions; (c) to cure any ambiguity in, or to
correct or supplement any provision of, the Indenture as shall not adversely
affect the interests of the holders of the Securities; (d) to add to, change or
eliminate any of the provisions of the Indenture in respect of one or more
series of Debt Securities thereunder, under certain conditions specified
therein; (e) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee; (f) to evidence the appointment of a successor Trustee; and
(g) to establish additional Series of Securities which may be issued pursuant to
the Indenture. The Indenture also permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the holders of the Securities of
each Series to be affected under the Indenture at any time by the Company
22
and the Trustee with the consent of the holders of 66-2/3% in principal amount
of the Securities at the time outstanding of each Series to be affected. The
Indenture also contains provisions permitting the holders of specified
percentages in principal amount of the Securities of each Series at the time
outstanding, on behalf of the holders of all Securities of such Series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the holder of this DECS shall be conclusive and binding upon such
holder and upon all future holders of this DECS and of any Security issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this DECS.
As provided in and subject to the provisions of the Indenture, the holder
of this DECS shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
DECS, the holders of not less then 25% in principal amount of the DECS then
outstanding shall have made written request upon the Trustee to institute such
proceeding as trustee and offered the Trustee reasonable indemnity and the
Trustee shall not have received from the holders of a majority in principal
amount of the DECS at the time outstanding a direction inconsistent with such
request, and shall have failed to institute such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the holder of this DECS for the enforcement of
any payment of principal hereof or any premium or interest hereon on or after
the respective due dates expressed herein or, subject to compliance with the
Indenture, the Change in Control Purchase Price on or after the date as and when
the same shall become due and payable pursuant to Section 4.07 of the Indenture.
No reference herein to the Indenture and no provision of this DECS or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this DECS at
the times, place and rate, and in the manner, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, this DECS is transferable in the Debt Security register, upon surrender
of this DECS for registration of transfer at the office or agency of the Company
in any place where the principal of and interest on this DECS are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Debt Security registrar duly executed by,
the holder hereof or his attorney duly authorized in writing, and thereupon one
or more new DECS, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
DECS are issuable only in registered form without coupons in denominations
of $21.375 and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, DECS are exchangeable for a
like aggregate principal amount of DECS and of like tenor of a different
authorized denomination, as requested by the holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
R-2
23
Prior to due presentment of this DECS for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this DECS is registered as the owner hereof for all
purposes, whether or not this DECS be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this DECS which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
THIS DECS SHALL FOR ALL PURPOSES BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
R-3
24
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT-- Custodian
TEN ENT--as tenants by the entireties --------- ----------
JT TEN -- as joint tenants with right of (Cust) (Minor)
survivorship and not as tenants
in common Under Uniform Gifts to Minors Act
---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please insert Social Security or
Taxpayer I.D. or
other Identifying Number of Assignee
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please Print or Type Name and Address including Postal Zip Code of Assignee
--------------------------------------------------------------------------------
the within DECS and all rights thereunder, hereby irrevocably constituting and
appointing
attorney
---------------------------------------------------------------------
to transfer said DECS on the books of USX Corporation with full power of
substitution in the premises.
Dated:
---------------------------------- -------------------------------------
Signature
-------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as it appears upon the face of
the within DECS in every particular,
without alteration or enlargement or
any change whatsoever.
NOTICE: Signature(s) must be
guaranteed by a member of an Approved
Signature Guaranty Medallion Program.
R-4
