As filed with the Securities and Exchange Commission on April 7, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
ROCKWELL INTERNATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
----------------------
<TABLE>
<S> <C> <C>
DELAWARE 25-1797617
(State or other jurisdiction of 2201 Seal Beach Boulevard (I.R.S. Employer Identification Number)
incorporation or organization) Seal Beach, California 90740-8250
(412) 565-4090 (Office of the Secretary)
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices)
</TABLE>
----------------------
<TABLE>
<S> <C>
WILLIAM J. CALISE, JR., Esq. DAVID E. EAGAN, Esq.
Senior Vice President, General Counsel and Secretary Battle Fowler LLP
Rockwell International Corporation 75 East 55th Street
2201 Seal Beach Boulevard New York, New York 10022
Seal Beach, California 90740-8250 (212) 856-7000
(562) 797-3311
(Name, address, including zip code, and telephone number, including area code, of agent for service)
</TABLE>
----------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
----------------------
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
====================================================================================================================================
Proposed Proposed
Title of Securities Amount to Be Maximum Offering Maximum Aggregate Amount of
to Be Registered Registered Price Per Security* Offering Price* Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $1 per share
(including the associated Preferred Share
Purchase Rights).................................. 580,000 shares $63 2/8 $36,685,000 $11,117
====================================================================================================================================
</TABLE>
* Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(a) under the Securities Act, based on the average of
the high and low sales prices on the New York Stock Exchange Composite
Transactions reporting system on April 4, 1997.
----------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said section 8(a),
may determine.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any State.
PROSPECTUS
SUBJECT TO COMPLETION, DATED April 7, 1997
Rockwell International Corporation
Common Stock
(par value $1.00 per share)
----------------------
The 580,000 shares of Common Stock, par value $1.00 (Common Stock), of
Rockwell International Corporation (the Company) offered hereby may be acquired
by permitted transferees upon the exercise of transferred options (Transferred
Options) assigned to them by certain participants in the Rockwell International
Corporation 1988 Long-Term Incentives Plan (1988 LTIP) in accordance with the
terms of the 1988 LTIP and the option agreements pursuant to which such
Transferred Options were granted. See "Plan of Distribution."
This Prospectus also relates to offers and resales by any permitted
transferee (Affiliate Selling Shareowner) who may be deemed to be an affiliate
of the Company, as defined in Rule 405 under the Securities Act of 1933, as
amended (the Securities Act), of shares of Common Stock that may be acquired by
the Affiliate Selling Shareowners upon exercise of Transferred Options. See
"Affiliate Selling Shareowners."
The shares of Common Stock may be offered by the Affiliate Selling
Shareowners from time to time in transactions over one or more stock exchanges,
in the over-the-counter market, in negotiated transactions, or a combination of
such methods of sale, at fixed prices which may be changed, at market prices
prevailing at the time of sale, at prices related to prevailing market prices or
at negotiated prices. The Affiliate Selling Shareowners may effect such
transactions by selling the shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts, concessions or
commissions from the Affiliate Selling Shareowners and/or the purchasers of the
shares for whom such broker-dealers may act as agent or to whom they sell as
principal, or both (which compensation as to a particular broker-dealer might be
in excess of the customary commissions). To the extent required, the specific
shares to be sold, the names of the Affiliate Selling Shareowners, the public
offering price, the name of such agent, dealer or underwriter, and any
applicable commission or discount with respect to a particular offer will be set
forth in an accompanying Prospectus Supplement. The Company will not receive any
of the proceeds from sales by the Affiliate Selling Shareowners.
On April , 1997, the last reported sale price of the Common Stock on
the New York Stock Exchange was $ per share.
----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------------
The date of this Prospectus is
April , 1997.
<PAGE>
<TABLE>
TABLE OF CONTENTS
<CAPTION>
Page Page
<S> <C> <C> <C>
Documents Incorporated by Reference................. 2 Plan of Distribution................................. 7
Available Information............................... 2 Description of Company Capital Stock................. 11
Cautionary Statement................................ 3 Additional Information............................... 18
The Company......................................... 3 Legal Matters........................................ 19
Use of Proceeds..................................... 6 Experts.............................................. 19
Affiliate Selling Shareowners....................... 6
</TABLE>
DOCUMENTS INCORPORATED BY REFERENCE
The following documents, which are on file (file number 1-12383) with
the Securities and Exchange Commission (the Commission), are incorporated herein
by reference and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1996;
(b) The Company's Proxy Statement in connection with the Company's
1997 Annual Meeting of Shareowners held on February 5, 1997;
(c) Item 1 of the Company's Registration Statement on Form 8-A
pursuant to Section 12(b) of the Securities Exchange Act of
1934, as amended (the Exchange Act), filed by the Company
October 30, 1996; and
(d) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange
Act), subsequent to the date of this Prospectus and prior to the termination of
the offering of the shares hereunder shall be deemed to be incorporated herein
by reference and shall be a part hereof from the date of the filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes that statement. Any such
statement so modified or superseded shall not constitute a part of this
Prospectus, except as so modified or superseded.
The Company will provide without charge to each person to whom a copy
of this Prospectus is delivered, on the written or oral request of such person,
a copy of any or all of the information incorporated by reference in the
Registration Statement of which this Prospectus is a part (not including
exhibits to such information unless such exhibits are specifically incorporated
by reference into such information). Such request should be directed to Office
of the Secretary, Rockwell International Corporation, 625 Liberty Avenue,
Pittsburgh, Pennsylvania 15222-3123 (telephone number (412) 565-4090).
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Exchange Act, and in accordance therewith, files reports, proxy statements and
other information relating to its business, financial condition and other
matters with the Commission. This Prospectus contains information concerning the
Company but does not contain all of the information set forth in the
Registration Statement and exhibits thereto, or amendments thereto, which the
Company has filed or may file with the Commission under the Securities Act. Such
reports, proxy statements, Registration Statement and exhibits and other
information filed by the Company can be inspected and copied at the public
reference facilities of the Commission at the Commission's office at 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Regional Offices of the
Commission at 13th Floor, 7 World Trade Center, New York, New York 10048 and
Suite 1400, Northwestern Atrium Center, 500 West Madison Street, Chicago,
Illinois 60661. Copies of such material may also be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Commission also maintains a World Wide Web site
that contains reports, proxy and information statements and other information
regarding registrants (including the Company) that file electronically with the
Commission (http://www.sec.gov).
The Common Stock of the Company is listed on the New York and Pacific
Stock Exchanges. Reports, proxy statements and other information concerning the
Company can be inspected at those exchanges.
-2-
<PAGE>
CAUTIONARY STATEMENT
This Prospectus contains or incorporates by reference statements
relating to future results of the Company (including certain projections and
business trends) that are forward-looking statements as defined in the Private
Securities Litigation Reform Act of 1995. Actual results may differ materially
from those projected as a result of certain risks and uncertainties, including,
but not limited to, changes in political and economic conditions; domestic and
foreign government spending, budgetary and trade policies; demand for and market
acceptance of new and existing products; successful development of advanced
technologies; and competitive product and pricing pressures, as well as other
risks and uncertainties, including, but not limited to, those described in the
discussion of the Company's Semiconductor Systems business under Results of
Operations, 1996 Compared to 1995, on page 13 of the Company's Annual Report on
Form 10-K incorporated by reference herein and those detailed from time to time
in the filings of the Company with the Commission.
THE COMPANY
Rockwell International Corporation (the Company), a Delaware
corporation, is engaged in research, development and manufacture of many
diversified products. The Company was incorporated in 1996 and is the successor
to the former Rockwell International Corporation as the result of a tax-free
reorganization completed on December 6, 1996 (the Reorganization). The
predecessor corporation was incorporated in 1928. Pursuant to the
Reorganization, the Company divested its former Aerospace and Defense businesses
(the A&D Business) to The Boeing Company (Boeing) for approximately $3.2 billion
by means of a merger in which the Company's predecessor corporation became a
wholly-owned subsidiary of Boeing. Immediately prior to the merger,
substantially all of the Company's businesses and assets (other than the A&D
Business) were contributed to the Company, or to wholly-owned operating
subsidiaries of the Company, and all outstanding shares of the Company were
distributed to shareowners of the predecessor corporation on a one-for-one share
basis. As used herein, the term "the Company" includes subsidiaries and
predecessors unless the context indicates otherwise.
The Company's business segments are engaged in research, development,
and manufacture of diversified products as follows:
Electronics:
Automation--industrial automation equipment and systems,
including control logic, sensors, human-machine interface
devices, motors, power and mechanical devices, and software
products.
Avionics & Communications--avionics products and systems and
related communications technologies primarily used in
commercial and military aircraft and defense electronic
systems for command, control, communications, and
intelligence.
Semiconductor Systems--system-level semiconductor chipset
solutions for personal communication electronics markets,
including chipsets for facsimile and personal computer data
modems, wireless communications products such as global
positioning systems ("GPS"), packet data, cordless and
cellular chipsets, and automated call distribution equipment.
Automotive--components and systems for heavy- and medium-duty trucks,
buses, trailers and heavy-duty off-highway vehicles (Heavy Vehicle
Systems); and components and systems for light trucks and passenger
cars (Light Vehicle Systems).
The Company has its principal executive offices at 2201 Seal Beach
Boulevard, Seal Beach, California 90740-8250 (telephone number (412) 565-4090
(Office of the Secretary)).
Recent Developments
On March 17, 1997, the Company announced that its Board of Directors
had approved a plan to spin off the Company's automotive component systems
businesses into a new, separately traded, publicly held company. The spin-off is
subject to several conditions, including the receipt by the Company of a ruling
by the Internal Revenue Service that the transaction will qualify as a tax-free
distribution, and is expected to be completed by the end of the Company's 1997
fiscal year. Until the spin-off is completed, the automotive businesses will
continue to be operated as businesses of the Company but will be reported as
discontinued operations. Upon consummation of the spin-off, Company shareowners
will receive shares in the new automotive company on a pro rata basis. These
shares will be in addition to shares of the Company they may continue to own.
Application will be made to list the shares of the new automotive company on the
New York Stock Exchange.
-3-
<PAGE>
Unaudited Pro Forma Condensed Consolidated Financial Statements of the Company
Unaudited Pro Forma Condensed Consolidated Balance Sheet of the Company
The unaudited pro forma condensed consolidated balance sheet has been
derived from the historical consolidated balance sheet of the Company. The
unaudited pro forma condensed consolidated balance sheet of the Company has been
prepared assuming the spin-off of the Company's automotive component systems
businesses (Automotive) occurred on December 31, 1996.
The unaudited pro forma condensed consolidated balance sheet should be
read in conjunction with the historical financial statements of the Company and
the notes thereto for the three years in the period ended September 30, 1996 and
for the three months ended December 31, 1995 and 1996 incorporated herein by
reference. The unaudited pro forma condensed consolidated balance sheet is not
necessarily indicative of the financial position of the Company had the
Automotive spin-off occurred on December 31, 1996.
<TABLE>
<CAPTION>
December 31, 1996
---------------------------------------------------
Company Spin-off Pro Forma Company
Historical Automotive(1) Adjustment Pro Forma
(in millions)
<S> <C> <C> <C> <C>
Assets
Cash $ 853 $ (28) $ 400 (2) $ 1,225
Receivables 1,633 (473) -- 1,160
Inventories 1,795 (298) -- 1,497
Other current assets 685 (138) -- 547
--------- ----------- -------- ----------
Total current assets 4,966 (937) 400 4,429
-------- ----------- -------- ---------
Property, net 2,638 (657) -- 1,981
Intangible assets 1,803 (56) -- 1,747
Other assets 268 (93) -- 175
--------- ------------ -------- ---------
Total assets $ 9,675 $ (1,743) $ 400 $ 8,332
======== ========== ======== ========
Liabilities and Shareowners' Equity
Short-term debt $ 104 $ (29) $ -- $ 75
Accounts payable and accrued liabilities 2,545 (715) 20 (3) 1,850
--------- ------------ -------- --------
Total current liabilities 2,649 (744) 20 1,925
--------- ------------ -------- --------
Long-term debt 163 (7) -- 156
Accrued retirement benefits 1,104 (402) -- 702
Other liabilities 282 (13) -- 269
Shareowners' Equity:
Common Stock 192 -- -- 192
Class A Common Stock 27 -- -- 27
Additional paid-in-capital 855 (619) 400 (2) 636
Retained earnings 4,564 -- (20) (3) 4,544
Currency translation (101) 42 -- (59)
Common stock in treasury (60) -- -- (60)
--------- ------------ -------- ----------
Total shareowners' equity 5,477 (577) 380 5,280
--------- ------------ -------- ---------
Total liabilities and shareowners' equity $ 9,675 $ (1,743) $ 400 $ 8,332
========= =========== ======= =========
</TABLE>
Notes to Unaudited Pro Forma Condensed Consolidated Balance Sheet of
the Company:
(1) Assets and liabilities of Automotive. Although the spin-off
transaction has not been finalized, management believes that
any remaining pro forma adjustments would not have a material
effect on the financial position of the Company, except those
described in Notes 2 and 3.
(2) The receipt of a $400 million dividend from Automotive in
connection with the spin-off.
(3) The liability for expenses incurred in connection with the
spin-off of Automotive.
-4-
<PAGE>
Unaudited Pro Forma Condensed Consolidated Statements of Income of the Company
The unaudited pro forma condensed consolidated statements of income
have been derived from the historical consolidated statements of income of the
Company. The unaudited pro forma condensed consolidated statements of income
have been prepared assuming the Automotive spin-off and the disposition of the
Company's Aerospace and Defense Business occurred on October 1, 1995.
The unaudited pro forma condensed consolidated statements of income
should be read in conjunction with the historical financial statements of the
Company and notes thereto for the three years in the period ended September 30,
1996 and for the three months ended December 31, 1995 and 1996 incorporated
herein by reference. The unaudited pro forma condensed consolidated statements
of income are not necessarily indicative of the financial results of the Company
had the Automotive spin-off and the disposition of the Company's Aerospace and
Defense Business occurred on October 1, 1995.
<TABLE>
<CAPTION>
Fiscal Year Ended September 30, 1996
Company Spin-off Company
Historical Automotive(1) Pro Forma
(in millions, except per share data)
<S> <C> <C> <C>
Revenues:
Sales $10,373 $ (3,140) $ 7,233
Other income 169 (75) 94
-------- --------- --------
Total revenues 10,542 (3,215) 7,327
------- -------- -------
Cost and Expenses:
Cost of sales 7,877 (2,786) 5,091
Selling, general and administrative 1,494 (204) 1,290
Restructuring 122 (46) 76
Purchased research and development 121 -- 121
Interest 32 (9) 23
Total costs and expenses 9,646 (3,045) 6,601
------- -------- -------
Income before income taxes 896 (170) 726
Provision for income taxes 341 (65) 276
-------- --------- --------
Income from continuing operations $ 555 $ (105) $ 450
======== ======== =======
Earnings per share $ 2.55 $ (0.48) $ 2.07
====== ======== =======
Average outstanding shares 217.6 217.6 217.6
======== ======= ========
</TABLE>
- ----------------
Note to Unaudited Pro Forma Consolidated Condensed Statement of Income:
(1) Revenues and expenses of Automotive. Although the spin-off
transaction has not yet been finalized, management believes
that any remaining pro forma adjustments will not have a
material effect on the results of operations of the Company.
-5-
<PAGE>
<TABLE>
<CAPTION>
Three Months Ended December 31, 1996
Company Spin-off Company
Historical Automotive(1) Pro Forma
(in millions, except per share data)
<S> <C> <C> <C>
Revenues:
Sales $2,608 $ (755) $ 1,853
Other income 20 (12) 8
-------- ---------- --------
Total revenues 2,628 (767) 1,861
--------- ---------- --------
Cost and Expenses:
Cost of sales 1,943 (669) 1,274
Selling, general and administrative 390 (54) 336
Interest 5 (1) 4
------- ---------- ------
Total costs and expenses 2,338 (724) 1,614
------- ---------- ------
Income before income taxes 290 (43) 247
Provision for income taxes 111 (18) 93
-------- ----------- --------
Income from continuing operations $ 179 $ (25) $ 154
======== =========== =======
Earnings per share $ 0.82 $ (0.12) $ 0.70
====== ======== =======
Average outstanding shares 218.7 218.7 218.7
======= ======= =======
</TABLE>
- -------------------
Note to Unaudited Pro Forma Condensed Statement of Income:
(1) Revenues and expenses of Automotive. Although the spin-off
transaction has not yet been finalized, management believes
that any remaining pro forma adjustments will not have a
material effect on the results of operations of the Company.
USE OF PROCEEDS
Net proceeds received by the Company from the exercise of the
Transferred Options will be used for general corporate purposes.
The Company will not receive any of the proceeds from sales by the
Affiliate Selling Shareowners of shares of Common Stock acquired upon exercise
of the Transferred Options.
AFFILIATE SELLING SHAREOWNERS
This Prospectus also relates to the offer and sale by the Kenneth L.
Beall Trust #1 of up to 95,000 shares of Common Stock and by the Jeffrey R.
Beall Trust #1 of up to 95,000 shares of Common Stock which may be acquired by
the Trusts upon the exercise of Transferred Options granted to Donald R. Beall
and transferred to the Trusts in accordance with the provisions of the 1988 LTIP
and the option agreements between the Company and Mr. Beall pursuant to which
such Transferred Options were granted. Donald R. Beall, Chairman of the Board
and Chief Executive Officer and a Director of the Company, is the father of
Kenneth L. and Jeffrey R. Beall and a Trustee under both Trusts. To the
Company's knowledge, as of March 31, 1997, the Kenneth L. Beall Trust #1
beneficially owned an additional 6,177 shares of Common Stock and the Jeffrey R.
Beall Trust #1 beneficially owned an additional 11,177 shares of Common Stock.
Mr. Beall disclaims beneficial ownership of all shares of Common Stock
beneficially owned by both Trusts.
-6-
<PAGE>
The names of any other Affiliate Selling Shareowners who may be deemed
to be affiliates of the Company, as defined in Rule 405 under the Securities
Act, and the shares of Common Stock beneficially owned by them, the shares of
Common Stock offered by them and the shares of Common Stock to be beneficially
owned by them after completion of any offering will be set forth in an
accompanying Prospectus Supplement.
PLAN OF DISTRIBUTION
Shares Issuable Upon Exercise of Transferred Options
The shares of Common Stock offered hereby may be acquired by permitted
transferees upon the exercise of Transferred Options assigned to them by certain
participants in the 1988 LTIP in accordance with the terms of the 1988 LTIP and
the option agreements between the Company and such participants pursuant to
which the Transferred Options were granted.
Effective July 6, 1994, the Transferred Options were amended to permit
the grantees thereof to transfer any such option, in whole or in part, by gift
to any member of the grantee's immediate family (defined as the grantee's spouse
and natural, adopted or stepchildren and grandchildren) or to a trust for the
benefit of one or more members of the grantee's immediate family and to provide
that if any such option is so transferred, it thereafter shall be exercisable
only by the person, persons or trust to whom transferred (or by the legal
representative of the estate or the heirs or legatees of such transferee).
The following statements include summaries of certain provisions of the
1988 LTIP, including the provisions thereof relating to the Transferred Options.
These statements do not purport to be complete and are qualified in their
entirety by reference to the provisions of the 1988 LTIP, which is incorporated
by reference into the Registration Statement filed with the Commission covering
securities to which this Prospectus relates.
The 1988 LTIP was adopted by the Company's Board of Directors on
November 4, 1987 and became effective as of October 1, 1987 following approval
by the shareowners of the Company on February 10, 1988. The 1988 LTIP was
amended effective November 30, 1994 by resolutions of the Compensation Committee
of the Board of Directors (Compensation Committee) adopted December 7, 1994. The
1988 LTIP authorized the issuance or transfer of an aggregate of 16 million
shares of Common Stock and Class A Common Stock, par value $1 per share, of the
Company (Class A Common Stock) and permits payment to be made under the 1988
LTIP on up to 7 million performance units. The 1988 LTIP permitted grants to be
made from time to time as performance units, non-qualified stock options,
incentive stock options, stock appreciation rights (SARs) and restricted stock.
No further grants of performance units, stock options or restricted
stock will be made under the 1988 LTIP. Outstanding performance units under
supplementary performance plans with respect to performance periods not complete
remain eligible for payment in accordance with the 1988 LTIP and outstanding
stock options and SARs under the 1988 LTIP remain exercisable in accordance with
their terms.
The 1988 LTIP is not subject to any provisions of the Employee
Retirement Income Security Act of 1974, as amended, and is not qualified under
Section 401(a) of the Internal Revenue Code of 1986, as amended (Code).
Administration. Pursuant to a delegation of authority by the Board of
Directors of the Company, the 1988 LTIP is administered by the Compensation
Committee, consisting of three or more members of the Board of Directors of the
Company who are not eligible to participate in the 1988 LTIP. The Board of
Directors of the Company, however, also has authority to perform all functions
delegated to the Compensation Committee with respect to the 1988 LTIP.
Participation. The persons to whom grants were made under the 1988 LTIP
(1988 LTIP Participants) were selected from time to time by the Compensation
Committee in its sole discretion from among the corporate officers and other key
employees of the Company and its subsidiaries and affiliates. In selecting 1988
LTIP Participants and determining the type and amount of their grants, the
Compensation Committee considered the recommendations of the Chief Executive
Officer of the Company and took into account such factors as the 1988 LTIP
Participant's level of responsibility, performance, performance potential, level
and type of compensation and potential value of grants under the 1988 LTIP.
-7-
<PAGE>
Stock Options and SARs. The 1988 LTIP authorized grants to 1988 LTIP
Participants of stock options, which could be either incentive stock options
eligible for special tax treatment or non-qualified stock options, SARs and
restricted stock. All the Transferred Options are intended to be non-qualified
options.
Under the provisions of the 1988 LTIP authorizing the grant of stock
options, (a) the option price could not be less than the fair market value of
the Common Stock at the date of grant, (b) the aggregate fair market value
(determined as of the date the option is granted) of the Common Stock for which
any employee could be granted incentive stock options which are exercisable for
the first time in any calendar year could not exceed $100,000, (c) stock options
generally may not be exercised prior to one year nor after ten years from the
date of grant, and (d) at the time of exercise of a stock option the option
price must be paid in full in cash or in Common Stock or in a combination of
cash and Common Stock. If a 1988 LTIP Participant who holds an outstanding stock
option or SAR dies, the 1988 LTIP permits the exercise thereof within three
years of the date of death even if it were not exercisable at the date of death.
The 1988 LTIP permits the Compensation Committee to make determinations as to
exercisability upon other termination of a 1988 LTIP Participant's employment,
subject to certain limitations.
The 1988 LTIP permits the grant of SARs related to a stock option (a
Tandem SAR), either at the time of the option grant or thereafter during the
term of the option, or the grant of SARs separate and apart from the grant of an
option (a Freestanding SAR). As of the date of this Prospectus, no Tandem SARs
have been granted, and the Company does not intend to grant any Tandem SARs,
with respect to the Transferred Options.
Tax Consequences. The Company has been advised by Battle Fowler LLP,
counsel for the Company, that under the present provisions of the Code, the
principal Federal income tax consequences under the 1988 LTIP relating to
non-qualified stock options, Transferred Options and stock "swaps" are as
described below.
Non-qualified Stock Options. The grant of a non-qualified stock option
will have no immediate tax consequences to the Company or the employee. If an
employee exercises a non-qualified stock option, such employee will, except as
noted below, realize ordinary income measured by the difference between the
option price and the fair market value of the shares on the date of exercise,
and the Company will be entitled to a deduction in the same amount. In the case
of an employee subject to Section 16(b) of the Exchange Act, such ordinary
income will not be realized until the expiration of the period, if any, during
which a sale of the shares could subject the employee to suit under Section
16(b), and will be measured by the fair market value of the shares at that time,
unless such employee elects under Section 83(b) of the Code to realize ordinary
income at the time of exercise, measured by the fair market value of the shares
at that time. Any difference between such fair market value and the price at
which the employee may subsequently sell such shares will be treated as capital
gain or loss, long-term or short-term depending on the length of time the shares
have been held. Under the present provisions of the Code, long-term capital
gains are taxable at a maximum rate of 28%; capital losses of individual
taxpayers are deductible only against capital gains, and a limited amount of
ordinary income. The precise application of the foregoing deferral of income
realization rule under applicable rules adopted by the Commission under Section
16 of the Exchange Act is not entirely clear. It appears likely, however, that
realization of income will no longer be deferred, at least unless the employee
has other matching purchases of shares during the six-month period prior to
exercise of the stock option, and perhaps not even then.
Stock "Swaps." A published ruling issued by the Internal Revenue
Service prior to enactment of the 1981 Act held that if upon exercise of a
non-qualified stock option the option price is paid in shares of stock, rather
than cash, no gain or loss would be recognized upon the transfer of such shares
in payment of the option price to the extent that the number of shares received
was equal to the number of shares surrendered. In such case, the basis and
holding period of a corresponding number of the shares received would be the
same as the basis and holding period of the shares surrendered. To the extent
that the number of shares received upon the exercise exceeded the number of
shares surrendered, the employee would realize ordinary income in an amount
equal to the fair market value of such excess number of shares, and the
employee's basis for such shares would be equal to such amount.
Transferred Options. The transfer of a Transferred Option will have no
immediate tax consequences to the Company, the employee or the transferee. Upon
the subsequent exercise of the Transferred Option by the transferee, the
employee will realize ordinary income in an amount measured by the difference
between the option price and the fair market value of the shares on the date of
exercise, and the Company will be entitled to a deduction in the same amount.
Any difference between such fair market value and the price at which the
transferee may subsequently sell such shares will be treated as capital gain or
loss to the transferee, long-
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term or short-term depending on the length of time the shares have been held by
the transferee.
Since the foregoing does not purport to be a complete description of
the Federal income tax aspects of the benefits under the 1988 LTIP with respect
to Transferred Options, holders should consult their tax advisors on any
questions they may have.
Change of Control Benefits. In order to maintain the rights of
participants in the event of a change of control of the Company, the 1988 LTIP
provides that unless prior to the occurrence of such a change the Board of
Directors shall have determined otherwise by a vote of at least two-thirds of
its members, all stock options and SARs then outstanding shall become fully
exercisable whether or not otherwise then exercisable; and the restrictions on
all shares granted as restricted stock would lapse. A change of control is
deemed to occur under the same circumstances as provided in Article III, Section
15(I)(1) of the By-Laws of the Company (Company By-Laws).
Amendment, Suspension or Termination of the 1988 LTIP. The Board of
Directors of the Company may at any time amend, suspend or terminate the 1988
LTIP or grants made thereunder. In the event any change in or affecting Common
Stock occurs, the Board of Directors of the Company may make appropriate
amendments to or adjustments in the 1988 LTIP or grants made thereunder,
including changes in the number of shares of Common Stock and price per share
subject to outstanding options and SARs. The Board of Directors of the Company
may not, however (except in making amendments and adjustments in the event of
changes in or affecting Common Stock) (i) without the consent of the person
affected, cancel or reduce any grant theretofore made other than as provided for
or contemplated in the agreement evidencing the grant or (ii) without the
approval of shareowners, change the class of persons eligible to receive
incentive stock options under the 1988 LTIP, increase the number of Common Stock
that may be issued or transferred under the 1988 LTIP, reduce the option
exercise price of any stock option below the fair market value of the Common
Stock covered thereby at the date of grant or decrease the forfeiture period for
any restricted stock below that permitted under the 1988 LTIP.
Shares Deliverable. Shares deliverable upon exercise of stock options
or SARs granted under the 1988 LTIP may consist of unissued or reacquired shares
of Common Stock.
No person shall have the rights or privileges of a shareowner with
respect to shares subject to an option or SAR until exercise of such option or
right.
Death, Retirement or Other Termination of Employment. If a participant
who holds an outstanding stock option or SAR dies, option agreements under the
1988 LTIP permit the exercise thereof within three years after the date of death
(or until expiration of the grant, if earlier), even if it was not exercisable
at the date of death.
If a participant in the 1988 LTIP who holds an outstanding grant of
stock options or SARs retires under a retirement plan of the Company at any time
after a portion thereof has become exercisable, all the options or rights
subject to that grant and not theretofore exercised may be exercised from and
after the date upon which they are first exercisable under that grant for a
period of five years after the date of retirement (or until expiration of the
grant, if earlier); provided, however, that stock options and SARs subject to a
grant made within 18 months before retirement or held by a retiree who retires
prior to age 62 or the accumulation of 85 points (or fulfillment of other
criteria for an unreduced early retirement benefit) for purposes of the
applicable retirement plan may be exercised solely for a period of three years
after the date of retirement (or until the expiration of the grant, if earlier)
or such shorter period as the Compensation Committee may determine within 60
days before or after the retiree's retirement.
If the employment of a participant in the 1988 LTIP who holds a stock
option or SAR is terminated for any other reason, the option or right may be
exercised only within 90 days after termination of such employment (or until
expiration of the grant, if earlier) and (unless otherwise determined by the
Compensation Committee) only to the extent that the participant was entitled to
exercise at the time of termination of employment.
Adjustments Upon Changes in Capitalization. The 1988 LTIP provides
that in the event of a merger, consolidation, reorganization, recapitalization,
reclassification, stock dividend, stock split or combination, or other
distribution to holders of shares (other than a cash dividend), the Board of
Directors may make appropriate amendments or adjustments in 1988 LTIP or grants
made
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thereunder, including changes in the number of shares that may be issued or
transferred, in the aggregate or to any one employee, pursuant to the 1988 LTIP,
the number of shares subject to outstanding options and SARs and the related
price per share.
Fractional Shares; Limited Assignability of Rights. No fractional
shares shall be issued under the 1988 LTIP.
Under the 1988 LTIP, no assignment, pledge or transfer of rights in an
option or SAR may be made otherwise than by will or the laws of descent and
distribution, and each option and SAR granted under that Plan may be exercised,
during the lifetime of the employee to whom granted, only by such employee;
provided, however, that effective July 6, 1994, pursuant and subject to the
provisions of the 1988 LTIP, certain options previously granted and outstanding
under the 1988 LTIP were amended by the Compensation Committee to permit the
grantees thereof to transfer any such option, in whole or in part, by gift to
any member of the grantee's immediate family (defined as the grantee's spouse
and natural, adopted or stepchildren and grandchildren) or to a trust for the
benefit of one or more members of the grantee's immediate family and to provide
that if any such option is so transferred, it thereafter shall be exercisable
only by the person, persons or trust to whom transferred (or by the legal
representative of the estate or the heirs or legatees of such transferee). The
Transferred Options were transferred to the permitted transferees in accordance
with these amendments.
Amendment and Termination. The Board of Directors may at any time
amend, suspend or terminate the 1988 LTIP or grants made thereunder. It may not,
however (except in making amendments and adjustments in the event of changes in
or affecting shares), (i) without the consent of the person affected, cancel or
reduce any grant theretofore made other than as provided for or contemplated in
the agreement evidencing the grant or (ii) without the approval of shareowners
of the Company, increase the number of shares that may be issued or transferred
under the 1988 LTIP or reduce the option exercise price of any stock option
below the fair market value of the shares covered thereby at the date of grant.
Resale of Shares by Affiliate Selling Shareowners
This Prospectus also relates to offers and resales by any Affiliate
Selling Shareowner who may be deemed to be an affiliate of the Company, as
defined in Rule 405 under the Securities Act, of shares of Common Stock that may
be acquired by the Affiliate Selling Shareowners upon exercise of Transferred
Options.
The distribution of the shares by the Affiliate Selling Shareowners is
not subject to any underwriting agreement. The Affiliate Selling Shareowners may
sell the shares offered hereby from time to time in transactions over one or
more stock exchanges, in the over-the-counter market, in negotiated
transactions, or a combination of such methods of sale, at fixed prices which
may be changed, at market prices prevailing at the time of sale, at prices
relating to prevailing market prices or at negotiated prices. The Affiliate
Selling Shareowners may effect such transactions by selling the shares to or
through broker-dealers, and such broker-dealers may receive compensation in the
form of discounts, concessions or commissions from the Affiliate Selling
Shareowners and/or the purchasers of the shares for whom such broker-dealers may
act as agents or to whom they sell as principals, or both (which compensation as
to a particular broker-dealer might be in excess of the customary commissions).
The Affiliate Selling Shareowners and any broker-dealers that participate with
the Affiliate Selling Shareowners in the distribution of the shares may be
deemed to be underwriters within the meaning of Section 2(11) of the Securities
Act and any commissions received by them and any profit on the resale of the
shares may be deemed to be underwriting commissions or discounts under the
Securities Act. The Affiliate Selling Shareowners will pay any transaction costs
associated with effecting any sales that occur.
To the extent required, the specific shares to be sold, the names of
the Selling Shareholders, the public offering price, the names of such agent,
dealer or underwriter, and any applicable commission or discount with respect to
a particular offer will be set forth in an accompanying Prospectus Supplement.
In order to comply with the securities laws of certain states, if
applicable, the shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with by the Company and the Affiliate
Selling Shareowners.
The Affiliate Selling Shareowners are not restricted as to the price or
prices at which they may sell their shares. Sales of such shares may have an
adverse effect on the market price of the Common Stock. Moreover, the Affiliate
Selling Shareowners are not restricted as to the number of shares that may be
sold at any time, and it is possible that a significant number of shares could
be sold at the same time, which may have an adverse effect on the market price
of the Common Stock.
The holders of the Transferred Options have agreed to pay all fees and
expenses incident to the registration of the shares covered by this Prospectus
pro rata.
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DESCRIPTION OF COMPANY CAPITAL STOCK
The following description summarizes certain information regarding the
capital stock of the Company. The information does not purport to be complete
and is subject in all respects to the applicable provisions of the Delaware
General Corporation Law, as amended (the DGCL), the Company's Restated
Certificate of Incorporation, as amended December 6, 1996 (the Company
Certificate) and the Company By-Laws. The Company Certificate and the Company
By-Laws are incorporated by reference into the Registration Statement filed with
the Commission covering the shares of Common Stock to which this Prospectus
relates.
The Company is authorized to issue (i) 1,000,000,000 shares of Common
Stock and (ii) 25,000,000 shares of Preferred Stock, without par value
(Preferred Stock), of which 2,500,000 shares have been designated as Series A
Junior Participating Preferred Stock (Junior Preferred Stock) for issuance in
connection with the exercise of the Company Rights. See "-- The Company Rights
Plan."
On March 31, 1997, the Company had outstanding shares of Common Stock.
On such date, no shares of Preferred Stock were outstanding.
On February 23, 1997, all outstanding shares of Class A Common Stock
were automatically converted, on a one-for-one basis, into shares of Common
Stock pursuant to Section 3.2 (ii) of the Company Certificate. Class A Common
Stock is no longer authorized for issuance as provided in Section 3.4 of the
Company Certificate.
Common Stock
Holders of Common Stock will be entitled to such dividends as may be
declared by the Board of Directors of the Company out of any funds of the
Company legally available therefor. Dividends may not be paid on Common Stock
unless all accrued dividends on Preferred Stock, if any, have been paid or set
aside. In the event of any liquidation, dissolution or winding up of the
Company, the holders of Common Stock will be entitled to share pro rata in the
assets remaining after payment to creditors and after payment of the liquidation
preference plus any unpaid dividends to holders of any outstanding Preferred
Stock, if any. Each holder of Common Stock will be entitled to one vote for each
such share outstanding in such holder's name. No holder of Common Stock will be
entitled to cumulate such holder's votes in voting for directors. The Company
Certificate provides that, unless otherwise determined by the Board of Directors
of the Company, no holder of Common Stock will, as such holder, have any right
to purchase or subscribe for any stock of any class which the Company may issue
or sell.
Preferred Stock
General
The Company Certificate authorizes the Board of Directors of the
Company to establish one or more series of Preferred Stock (of up to an
aggregate of 25,000,000 shares) and to determine, with respect to any series of
Preferred Stock, the terms and rights of such series, including (i) the
designation of the series, (ii) the number of shares of the series, which number
the Board of Directors of the Company may thereafter (except where otherwise
provided in the applicable certificate of designation) increase or decrease (but
not below the number of shares thereof then outstanding), (iii) whether
dividends, if any, will be cumulative or noncumulative, and, in the case of
shares of any series having cumulative dividend rights, the date or dates or
method of determining the date or dates from which dividends on the shares of
such series shall be cumulative, (iv) the rate of any dividends (or method of
determining such dividends) payable to the holders of the shares of such series,
any conditions upon which such dividends will be paid and the date or dates or
the method for determining the date or dates upon which such dividends will be
payable, (v) the redemption rights and price or prices, if any, for shares of
the series, (vi) the terms and amounts of any sinking fund provided for the
purchase or redemption of shares of the series, (vii) the amounts payable on and
the preferences, if any, of shares of the series in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Company, (viii) whether the shares of the series will be convertible or
exchangeable into shares of any other class or series, or any other security, of
the Company or any other corporation, and, if so, the specification of such
other class or series or such other security, the conversion or exchange price
or prices or rate or rates, any adjustments thereof, the date or dates as of
which such shares will be convertible or exchangeable and all other terms and
conditions upon which such conversion or exchange may be made, (ix) restrictions
on the issuance of shares of the same series or of any other class or series,
(x) the voting rights, if any, of the holders of the shares of the series and
(xi) any other relative rights, preferences and limitations of such series.
The Board of Directors of the Company believes that the ability of the
Board to issue one or more series of Preferred Stock provides the Company with
flexibility in structuring possible future financings and acquisitions, and in
meeting other corporate needs
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which might arise. The authorized shares of Preferred Stock, as well as Common
Stock, will be available for issuance without further action by the Company's
shareowners, unless such action is required by applicable law or the rules of
any stock exchange or automated quotation system on which the Company's
securities may be listed or traded. If the approval of the Company's shareowners
is not so required, the Board of Directors of the Company may determine not to
seek shareowner approval.
Although the Board of Directors of the Company has no intention at the
present time of doing so (other than as described below with respect to the
Junior Preferred Stock), it could issue a series of Preferred Stock that could,
depending on the terms of such series, impede the completion of a merger, tender
offer or other takeover attempt. The Board of Directors of the Company will make
any determination to issue such shares based on its judgment as to the best
interests of the Company and its shareowners. The Board of Directors of the
Company, in so acting, could issue Preferred Stock having terms that could
discourage an acquisition attempt through which an acquiror may be able to
change the composition of the Board of Directors of the Company, including a
tender offer or other transaction that some, or a majority, of the Company's
shareowners might believe to be in their best interests or in which shareowners
might receive a premium for their stock over the then current market price of
such stock.
Company Junior Preferred Stock
The Board of Directors of the Company has authorized the issuance of up
to 2,500,000 shares of Junior Preferred Stock. The terms of the Junior Preferred
Stock are set forth in the Company Certificate. The Junior Preferred Stock, when
issued upon exercise of the Company Rights, will be fully paid and
nonassessable. See "Company Rights Plan."
Ranking and Redemption. The Junior Preferred Stock will rank junior to
all series of any other class of Preferred Stock with respect to payments of
dividends and distribution of assets and will be non-redeemable.
Dividend Rights. Holders of Junior Preferred Stock will be entitled to
receive, when, as and if declared by the Board of Directors of the Company out
of funds legally available therefor, quarterly dividends equal to the greater of
(i) $1 or (ii) 100 times the amount of cash dividends and 100 times the amount
(payable in kind) of non-cash dividends or other distributions (other than stock
dividends of Common Stock) declared per share of Common Stock. If the Company at
any time declares or pays a stock dividend payable in Common Stock, or effects a
subdivision or combination or consolidation of shares of Common Stock, then the
amount to which holders of Junior Preferred Stock will be entitled under clause
(ii) of the previous sentence will be adjusted in accordance with the
antidilution provisions contained in the Company Certificate.
Dividends and distributions on the Junior Preferred Stock will be
declared immediately after the declaration of the dividend or distribution on
the Common Stock and will be payable quarterly on the second Monday of March,
June, September and December in each year (a Dividend Payment Date). In the
event that no dividend or distribution is declared on Common Stock, then a
dividend of $1 per share of Junior Preferred Stock will nevertheless be payable
on the next Dividend Payment Date. Dividends declared will be payable to record
holders of Junior Preferred Stock on a record date not more than 60 days prior
to the payment date, as determined by the Board of Directors of the Company.
Dividends on the Junior Preferred Stock will accrue and be cumulative.
Accrued and unpaid dividends will not bear interest.
If quarterly dividends or other dividends or distributions payable on
the Junior Preferred Stock are in arrears, until all accrued and unpaid
dividends and distributions on the Junior Preferred Stock are paid in full, the
Company may not (i) declare or pay any dividend or distribution with respect to
any stock ranking junior to the Junior Preferred Stock; (ii) declare or pay any
dividend or distribution with respect to any stock ranking on parity with the
Junior Preferred Stock, other than pro rata distributions made on the Junior
Preferred Stock and all such parity stock; (iii) redeem or purchase or otherwise
acquire shares of any stock ranking junior to the Junior Preferred Stock
(provided that the Company may redeem or purchase or otherwise acquire shares of
any such junior stock in exchange for shares of any stock ranking junior to the
Junior Preferred Stock); and (iv) redeem or purchase or otherwise acquire shares
of any stock ranking on parity with the Junior Preferred Stock, except in
accordance with a purchase offer made in writing or publication to all holders
of such shares upon such terms as the Board of Directors, after consideration of
the respective annual dividend rates and other relative rights and preferences
of the respective series and classes, shall determine in good faith will result
in fair and equitable treatment among the respective series or classes.
Liquidation Preference. In the event of any liquidation, dissolution
or winding up of the Company, no distributions will be made with respect to (i)
any shares of stock ranking junior to the Junior Preferred Stock, unless holders
of shares of Junior Preferred Stock have received an amount per share equal to
$100 plus an amount per share equal to any dividends accrued but unpaid thereon,
without interest, provided that such holders will be entitled to receive an
amount per share equal to 100 times the amount to be distributed per share to
holders of Common Stock or (ii) any shares of stock ranking on parity with the
Junior Preferred Stock, except for pro rata distributions made on the Junior
Preferred Stock and all such parity stock. If the Company at any time declares
or pays
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a stock dividend payable in Common Stock, or effects a subdivision or
combination or consolidation of shares of Common Stock, then the amount to which
holders of Junior Preferred Stock will be entitled will be adjusted in
accordance with the antidilution provisions contained in the Company
Certificate.
Voting Rights. Each share of Junior Preferred Stock will be entitled
to 100 votes per share. If the Company at any time declares or pays a stock
dividend payable in Common Stock, or effects a subdivision or combination or
consolidation of Common Stock, then the number of votes to which holders of
Junior Preferred Stock will be entitled will be adjusted in accordance with the
antidilution provisions contained in the Company Certificate. The Junior
Preferred Stock vote together with the Common Stock as one class on all matters
submitted to a vote of shareowners of the Company, except as otherwise provided
in a certificate of designation for any other class of Preferred Stock filed
with the Secretary of State of the State of Delaware or by law. Except as
otherwise provided by law, the Junior Preferred Stock will have no special
voting rights, and except to the extent the Junior Preferred Stock is entitled
to vote with the Common Stock, the consent of the Junior Preferred Stock will
not be required for taking any corporate action.
Rights Upon Consolidation, Merger or Combination. If the Company
enters into any consolidation, merger, combination or other transaction in which
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or other property, then each share of Junior Preferred
Stock will at the same time be similarly exchanged or changed into an amount per
share equal to 100 times the aggregate amount of stock, securities, cash and/or
other property (payable in kind) into which or for which each share of Common
Stock is changed or exchanged. If the Company at any time declares or pays a
stock dividend payable in Common Stock, or effects a subdivision or combination
or consolidation of Common Stock, then the amount to which holders of Junior
Preferred Stock will be entitled with respect to such exchange or change will be
adjusted in accordance with the antidilution provisions contained in the Company
Certificate.
Certain Provisions in the Company Certificate and the Company By-Laws
The Company Certificate and the Company By-Laws contain various
provisions intended to (i) promote stability of the Company's shareowner base
and (ii) render more difficult certain unsolicited or hostile attempts to take
over the Company which could disrupt the Company, divert the attention of the
Company's directors, officers and employees and adversely affect the
independence and integrity of the Company's business. A summary of these
provisions of the Company Certificate and the Company By-Laws is set forth
below.
Classified Board of Directors and Removal of Directors
Pursuant to the Company Certificate, the number of directors of the
Company will be fixed by the Board of Directors of the Company. The directors
(other than those elected by the holders of any series of Preferred Stock or any
other series or class of stock) will be divided into three classes, each class
to consist as nearly as possible of one-third of the directors. Directors
elected by shareowners at an Annual Meeting of Shareowners will be elected by a
plurality of all votes cast at such annual meeting. The terms of office of the
three classes of directors will expire, respectively, at the Annual Meeting of
Shareowners in 1998, 1999 and 2000. The term of the successors of each such
class of directors expires three years from the year of election.
The Company Certificate provides that except as otherwise provided for
or fixed by or pursuant to a Certificate of Designations setting forth the
rights of the holders of any class or series of Preferred Stock, newly created
directorships resulting from any increase in the number of directors and any
vacancies on the Board of Directors of the Company resulting from death,
resignation, disqualification, removal or other cause will be filled by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum of the Board of Directors of the Company, and not by
the shareowners. Any director elected in accordance with the preceding sentence
will hold office for the remainder of the full term of the class of directors in
which the new directorship was created or the vacancy occurred and until such
director's successor shall have been duly elected and qualified. No decrease in
the number of directors constituting the Board of Directors of the Company will
shorten the term of any incumbent director. Subject to the rights of holders of
Preferred Stock, any director may be removed from office only for cause by the
affirmative vote of the holders of at least 80 percent of the voting power of
all the outstanding capital stock of the Company entitled to vote generally in
the election of directors (the Voting Power), voting together as a single class.
These provisions of the Company Certificate would preclude a third
party from removing incumbent directors and simultaneously gaining control of
the Board of Directors of the Company by filling the vacancies created by
removal with its own nominees. Under the classified board provisions described
above, it would take at least two elections of directors for any individual or
group to gain control of the Board of Directors of the Company. Accordingly,
these provisions could discourage a third party from initiating a proxy contest,
making a tender offer or otherwise attempting to gain control of the Company.
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Fair Price Provision
The Company Certificate contains a provision (the Fair Price Provision)
pursuant to which a Business Combination (as defined below) between the Company
or a subsidiary of the Company and an Interested Shareowner (as defined below)
requires approval by the affirmative vote of the holders of not less than 80
percent of the Voting Power, unless the Business Combination is approved by at
least two-thirds of the Continuing Directors (as defined below) or certain fair
price criteria and procedural requirements specified in the Fair Price Provision
and described below are met. If either the requisite Board of Directors approval
or the fair price and procedural requirements were met, the Business Combination
would be subject to the voting requirements otherwise applicable under the DGCL,
which for most types of Business Combinations currently would be the affirmative
vote of the holders of a majority of the outstanding shares of stock of the
Company entitled to vote thereon.
The general purpose of the Fair Price Provision is to protect
shareowners against so-called front-end loaded or two-tier tender offers which
may afford some shareowners a disproportionately higher price for their shares
than shareowners receive generally. The Fair Price Provision is intended to help
assure the Company's shareowners fair and equitable treatment in the event a
third party were to seek to acquire the Company.
A Business Combination is defined as: (i) a merger or consolidation of
the Company or any subsidiary with an Interested Shareowner; (ii) the sale,
lease, exchange, mortgage, pledge, transfer or other disposition by the Company
or a subsidiary of assets or securities having a value of $25 million or more if
an Interested Shareowner is a party to the transaction; (iii) the adoption of
any plan or proposal for the liquidation or dissolution of the Company proposed
by or on behalf of an Interested Shareowner; (iv) any reclassification of
securities, recapitalization, merger with a subsidiary or other transaction
which has the effect, directly or indirectly, of increasing an Interested
Shareowner's proportionate share of the outstanding capital stock of the Company
or a subsidiary; or (v) any agreement or contract providing for any of the
foregoing.
An Interested Shareowner is defined as any person who is the beneficial
owner of 10 percent or more of the Voting Power other than the Company, certain
of its subsidiaries, or the employee benefit plans of the Company and the
trustees of such plans. A person is the beneficial owner of stock that such
person, directly or indirectly, owns or has the right to acquire or vote. As of
March 31, 1997, the Company was not aware of any person or group who was within
the definition of an Interested Shareowner.
Fair Price Criteria. Under the Fair Price Provision, the fair price
criteria that must be satisfied to avoid the 80 percent shareowner voting
requirement include the requirement that the consideration paid to the Company's
shareowners in a Business Combination must be either cash or the same form of
consideration used by the Interested Shareowner in acquiring its beneficial
ownership of the largest number of shares of the Company's capital stock
acquired by the Interested Shareowner. The Interested Shareowner would be
required to meet the fair price criteria with respect to each class of the
Company's capital stock, whether or not the Interested Shareowner beneficially
owned shares of that class prior to proposing the Business Combination. If the
Business Combination does not involve any cash or other property being received
by any of the other shareowners, such as a sale of assets or an issuance of the
Company's securities to an Interested Shareowner, then the fair price criteria
discussed above would not apply, and approval by the holders of 80 percent of
the Voting Power would be required unless the transaction were approved by at
least two-thirds of the Continuing Directors.
Procedural Requirements. Under the Fair Price Provision, even if the
foregoing fair price criteria are met, the following procedural requirements
must be met if the Business Combination is not to require approval by at least
two-thirds of the Continuing Directors or approval by the holders of 80 percent
of the Voting Power: (i) the Company, after the Interested Shareowner became an
Interested Shareowner, must not have failed to pay full quarterly dividends on
the Preferred Stock, if any, or reduced the rate of dividends paid on Common
Stock, unless such failure or reduction was approved by at least two-thirds of
the Continuing Directors; (ii) the Interested Shareowner must not have acquired
at any time after becoming an Interested Shareowner any additional shares of the
Company's capital stock in any transaction unless after giving effect to such
acquisition there would be no increase in the Interested Shareowner's percentage
beneficial ownership of any class of the Company's capital stock; (iii) the
Interested Shareowner must not have received (other than proportionately as a
shareowner) at any time after becoming an Interested Shareowner, whether in
connection with the proposed Business Combination or otherwise, the benefit of
any loans or other financial assistance or any tax advantages provided by the
Company; (iv) a proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Exchange Act must have
been mailed to all shareowners of the Company at least 30 days prior to the
consummation of the Business Combination; and (v) the Interested Shareowner must
not have made any material change in the Company's business or equity capital
structure without the approval of at least two-thirds of the Continuing
Directors.
Continuing Director Approval. If the Business Combination with an
Interested Shareowner is approved by at least two-thirds of the Continuing
Directors, neither the fair price criteria and other procedural requirements nor
the 80 percent shareowner vote
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requirement would be applicable. A Continuing Director is any member of the
Board of Directors of the Company who is not affiliated or associated with or a
representative of the Interested Shareowner and who was a director of the
Company prior to the time the Interested Shareowner became an Interested
Shareowner, and any successor to such Continuing Director who is not affiliated
or associated with or a representative of an Interested Shareowner and who was
recommended or elected by at least two-thirds of the Continuing Directors.
80 Percent Shareowner Vote. If the fair price criteria and procedural
requirements are not satisfied and the Business Combination is not approved by
at least two-thirds of the Continuing Directors, the Fair Price Provision
requires the approval of the holders of 80 percent of the Voting Power, voting
as a single class, in addition to any vote required by law or otherwise. If the
fair price criteria and other procedural requirements were met or at least
two-thirds of the Continuing Directors approved a particular Business
Combination, the normal voting requirements of the DGCL and the New York Stock
Exchange, Inc. (the NYSE) would apply. Under current provisions of the DGCL,
certain mergers, consolidations, reclassifications of securities, sales of
substantially all assets and plans of dissolution would have to be approved by
the holders of a majority of the outstanding shares of stock of the Company
entitled to vote thereon. Under the current rules of the NYSE, on which shares
of Common Stock are listed, the issuance of additional shares of Common Stock
aggregating 20 percent of the outstanding shares could, under certain
circumstances, require approval by a majority of the votes cast by the holders
of the shares of the stock of the Company entitled to vote thereon. Certain
other transactions, such as sales of less than substantially all assets, mergers
involving a 90%-owned subsidiary and recapitalizations not involving any
amendments to the Company Certificate, would not require shareowner approval
under the DGCL or NYSE rules, although such transactions may constitute Business
Combinations subject to the Fair Price Provision.
Amendment of the Fair Price Provision. Any amendment or repeal of the
Fair Price Provision, or the adoption of provisions inconsistent therewith, must
be approved by the affirmative vote of the holders of not less than 80 percent
of the Voting Power, voting together as a single class, unless such amendment,
repeal or adoption were approved by at least two-thirds of the Continuing
Directors, in which case the provisions of the DGCL would require the
affirmative vote of the holders of a majority of the outstanding shares of the
Common Stock entitled to vote thereon.
Special Shareowners' Meetings and Right to Act By Written Consent
The Company Certificate and the Company By-Laws provide that a special
meeting of shareowners may be called only by a resolution adopted by a majority
of the entire Board of Directors of the Company. Shareowners are not permitted
to call, or to require that the Board of Directors call, a special meeting of
shareowners. Moreover, the business permitted to be conducted at any special
meeting of shareowners is limited to the business brought before the meeting
pursuant to the notice of the meeting given by the Company. In addition, the
Company Certificate and the Company By-Laws provide that any action taken by the
shareowners must be effected at an annual or special meeting of shareowners and
may not be taken by written consent in lieu of a meeting.
The provisions of the Company Certificate and the Company By-Laws
prohibiting shareowner action by written consent may have the effect of delaying
consideration of a shareowner proposal until the next annual meeting. These
provisions would also prevent the holders of a majority of the Voting Power from
unilaterally using the written consent procedure to take shareowner action.
Moreover, a shareowner could not force shareowner consideration of a proposal
over the opposition of the Board of Directors of the Company by calling a
special meeting of shareowners prior to the time the Board believes such
consideration to be appropriate.
Procedures for Shareowner Nominations and Proposals
The Company By-Laws establish an advance notice procedure for
shareowners to nominate candidates for election as directors or to bring other
business before meetings of shareowners of the Company (the Shareowner Notice
Procedure).
Only those shareowner nominees who are nominated in accordance with the
Shareowner Notice Procedure will be eligible for election as directors of the
Company. Under the Shareowner Notice Procedure, notice of shareowner nominations
to be made at an annual meeting (or of any other business to be brought before
such meeting) must be received by the Company not less than 60 days nor more
than 90 days prior to the first anniversary of the previous year's annual
meeting (or, if the date of the annual meeting is more than 30 days before or
more than 60 days after such anniversary date, not earlier than the 90th day
prior to such meeting and not later than the later of (i) the 60th day prior to
such meeting or (ii) the 10th day after public announcement of the date of such
meeting is first made). Notwithstanding the foregoing, in the event that the
number of directors to be elected is increased and there is no public
announcement naming all of the nominees for director or specifying the size of
the increased Board of Directors made by the Company at least 70 days prior to
the first anniversary of the preceding year's annual meeting, a shareowner's
notice will be timely, but only with respect to nominees for any new positions
created by such increase, if it is received by the Company not later than the
10th day after such public announcement is first made by the Company. Moreover,
the Shareowner Notice
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Procedure provides that if the Board of Directors of the Company has determined
that directors will be elected at a special meeting, a shareowner must give
written notice to the Secretary of the Company of any nominations to be brought
before a special meeting, not earlier than the 90th day prior to the special
meeting and not later than the later of the 60th day prior to the special
meeting or the 10th day following the first public announcement by the Company
of the date of the special meeting.
The Company By-Laws provide that only such business may be conducted at
a special meeting as is specified in the notice of meeting. Nominations for
election to the Company's Board of Directors may be made at a special meeting at
which directors are to be elected only by or at the Company Board of Directors'
direction or by a shareowner who has given timely notice of nomination. Under
the Shareowner Notice Procedure, such notice must be received by the Company not
earlier than the 90th day before such meeting and not later than the later of
(i) the 60th day prior to such meeting or (ii) the 10th day after public
announcement of the date of such meeting is first made. Shareowners will not be
able to bring other business before special meetings of shareowners.
The Shareowner Notice Procedure provides that at an annual meeting only
such business may be conducted as has been brought before the meeting by, or at
the direction of, the Chairman, the President or the Company's Board of
Directors or by a shareowner who has given timely written notice (as set forth
above) to the Secretary of the Company of such shareowner's intention to bring
such business before such meeting.
Under the Shareowner Notice Procedure, a shareowner's notice to the
Company proposing to nominate an individual for election as a director must
contain certain information, including, without limitation, the identity and
address of the nominating shareowner, the class and number of shares of stock of
the Company owned by such shareowner, and all information regarding the proposed
nominee that would be required to be included in a proxy statement soliciting
proxies for the proposed nominee. Under the Shareowner Notice Procedure, a
shareowner's notice relating to the conduct of business other than the
nomination of directors must contain certain information about such business and
about the proposing shareowner, including without limitation, a brief
description of the business the shareowner proposes to bring before the meeting,
the reasons for conducting such business at such meeting, the name and address
of such shareowner, the class and number of shares of stock of the Company
beneficially owned by such shareowner, and any material interest of such
shareowner in the business so proposed. If the Chairman or other officer
presiding at a meeting determines that an individual was not nominated, or other
business was not brought before the meeting, in accordance with the Shareowner
Notice Procedure, such individual will not be eligible for election as a
director, or such business will not be conducted at such meeting, as the case
may be.
By requiring advance notice of nominations by shareowners, the
Shareowner Notice Procedure will afford the Company Board of Directors an
opportunity to consider the qualifications of the proposed nominees and, to the
extent deemed necessary or desirable by the Company's Board of Directors, to
inform shareowners about such qualifications. By requiring advance notice of
other proposed business, the Shareowner Notice Procedure will provide a more
orderly procedure for conducting annual meetings of shareowners and, to the
extent deemed necessary or desirable by the Company's Board of Directors, will
provide the Company's Board of Directors with an opportunity to inform
shareowners, prior to such meetings, of any business proposed to be conducted at
such meetings, together with the Company's Board of Directors' position
regarding action to be taken with respect to such business, so that shareowners
can better decide whether to attend such a meeting or to grant a proxy regarding
the disposition of any such business.
Although the Company By-Laws do not give the Company's Board of
Directors any power to approve or disapprove shareowner nominations for the
election of directors or proposals for action, they may have the effect of
precluding a contest for the election of directors or the consideration of
shareowner proposals if the proper procedures are not followed, and of
discouraging or deterring a third party from conducting a solicitation of
proxies to elect its own slate of directors or to approve its own proposal,
without regard to whether consideration of such nominees or proposals might be
harmful or beneficial to the Company and its shareowners.
Amendment of the Company Certificate and the Company By-Laws
The Company Certificate provides that the affirmative vote of at least
80 percent of the Voting Power, voting together as a single class, would be
required to (i) amend or repeal the provisions of the Company Certificate, with
respect to (A) the election of directors and (B) the right to call a special
shareowners' meeting and (C) the right to act by written consent, (ii) adopt any
provision inconsistent with such provisions and (iii) amend or repeal the
provisions of the Company Certificate with respect to amendments to the Company
Certificate or the Company By-Laws. In addition, the Company Certificate
provides that the amendment or repeal by shareowners of any By-Laws made by the
Board of Directors of the Company would require the affirmative vote of at least
80 percent of the Voting Power, voting together as a single class.
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The Company Rights Plan
The Company Board of Directors has declared a dividend and paid a
dividend of one Company Right in respect of each share of Common Stock and
Company Class A Common Stock issued in connection with the Reorganization, and
has further directed the issuance of one Company Right with respect to each
share of Common Stock (including the shares offered hereby) that shall become
outstanding between the effective date of the Reorganization and the earliest of
the Distribution Date, the Redemption Date and the Final Expiration Date (as
such terms are defined in the Company Rights Agreement defined below). Each
Company Right entitles the registered holder to purchase from the Company one
one-hundredth of a share of Junior Preferred Stock, at a price of $250 (the
Purchase Price), subject to adjustment. The description and terms of the Company
Rights are set forth in a Rights Agreement (the Company Rights Agreement), dated
as of November 30, 1996, entered into between the Company and ChaseMellon
Shareholder Services, L.L.C., as Rights Agent (the Rights Agent). The Company
Rights Agreement is incorporated by reference into the Registration Statement
filed with the Commission covering the shares of Common Stock to which this
Prospectus relates.
Until the earlier to occur of (i) 10 days following a public
announcement that a person or group of affiliated or associated persons (an
Acquiring Person) has acquired beneficial ownership of 20% or more of the
outstanding Common Stock or (ii) 10 business days (or such later date as may be
determined by the Company's Board of Directors prior to such time as any person
or group becomes an Acquiring Person) following the commencement of, or
announcement of an intention to make, a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by a person or
group of 20% or more of the outstanding Common Stock (the earlier of such dates
being called the Rights Distribution Date), the Company Rights will be evidenced
by the Common Stock certificates.
The Company Rights Agreement provides that, until the Rights
Distribution Date (or until the earlier redemption or expiration of the Company
Rights), (i) the Company Rights will be transferred with and only with the
Common Stock, (ii) certificates representing Common Stock will contain a
notation incorporating the terms of the Company Rights by reference and (iii)
the surrender for transfer of any certificates representing Common Stock will
also constitute the surrender of the Company Rights associated therewith. As
soon as practicable following the Rights Distribution Date, separate
certificates evidencing the Company Rights (Right Certificates) will be mailed
to holders of record of the Common Stock as of the close of business on the
Rights Distribution Date and such separate Right Certificates alone will
evidence the Company Rights.
The Company Rights are not exercisable until the Rights Distribution
Date. The Company Rights will expire on the December 6, 2006, unless that date
is extended, or unless the Company Rights are earlier redeemed by the Company,
as described below.
The Purchase Price payable, and the number of shares of Junior
Preferred Stock or other securities or property issuable, upon exercise of the
Company Rights are subject to adjustment from time to time to prevent dilution
(i) in the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Junior Preferred Stock, (ii) upon the grant to holders
of shares of Junior Preferred Stock of certain rights or warrants to subscribe
for or purchase shares of Junior Preferred Stock at a price, or securities
convertible into shares of Junior Preferred Stock with a conversion price, less
than the then current market price of the shares of Junior Preferred Stock or
(iii) upon the distribution to holders of shares of Junior Preferred Stock of
evidences of indebtedness or assets (excluding regular periodic cash dividends
paid out of earnings or retained earnings or dividends payable in shares of
Junior Preferred Stock) or of subscription rights or warrants (other than those
referred to above).
The number of outstanding Company Rights and the number of one
one-hundredths of a share of Junior Preferred Stock issuable upon exercise of
each Company Right are also subject to adjustment in the event of a stock split
of the Common Stock or a stock dividend on the Common Stock payable in shares of
Common Stock or subdivisions, consolidations or combinations of the Common Stock
occurring, in any such case, prior to the Rights Distribution Date.
Shares of Junior Preferred Stock purchasable upon exercise of the
Company Rights will not be redeemable. Each share of Junior Preferred Stock will
be entitled to a minimum preferential quarterly dividend payment of $1 per share
but will be entitled to an aggregate dividend of 100 times the dividend declared
per share of Common Stock whenever such dividend is declared. In the event of
liquidation, the holders of the Junior Preferred Stock will be entitled to a
minimum preferential liquidation payment of $100 per share but will be entitled
to an aggregate payment of 100 times the payment made per share of Common Stock.
Each share of Junior Preferred Stock will have 100 votes, voting together with
the Common Stock. Finally, in the event of any merger, consolidation or other
transaction in which Common Stock is exchanged, each share of Junior Preferred
Stock will be entitled to receive 100 times the amount received per share of
Common Stock. These rights are protected by customary antidilution provisions.
Because of the nature of the Junior Preferred Stock's dividend,
liquidation and voting rights, the value of the one one-hundredth interest in a
share of Junior Preferred Stock purchasable upon exercise of each Company Right
should approximate the
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value of one share of Common Stock.
In the event that, at any time after a person has become an Acquiring
Person, the Company is acquired in a merger or other business combination
transaction or 50% or more of its consolidated assets or earning power is sold,
proper provision will be made so that each holder of a Company Right will
thereafter have the right to receive, upon the exercise thereof at the then
current exercise price of the Company Right, that number of shares of common
stock of the acquiring company which at the time of such transaction will have a
market value of two times the exercise price of the Company Right. In the event
that any person becomes an Acquiring Person, proper provision shall be made so
that each holder of a Company Right, other than the Company Rights beneficially
owned by the Acquiring Person (which will thereafter be void), will thereafter
have the right to receive upon exercise, in lieu of shares of Junior Preferred
Stock, that number of shares of Common Stock having a market value of two times
the exercise price of the Company Right.
At any time after any person or group of affiliated or associated
persons becomes an Acquiring Person, and prior to the acquisition by such person
or group of 50% or more of the outstanding shares of Common Stock, the Company's
Board of Directors may exchange the Company Rights for Common Stock or Junior
Preferred Stock (other than Company Rights owned by such person or group, which
will have become void after such person became an Acquiring Person), in whole or
in part, at an exchange ratio of one share of Common Stock, or one-hundredth of
a share of Junior Preferred Stock (or of a share of another series of Preferred
Stock having equivalent rights, preferences and privileges), per Company Right
(subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional shares of Junior Preferred Stock will be
issued (other than fractions which are integral multiples of one one-hundredth
of a share of Junior Preferred Stock, which may, at the election of the Company,
be evidenced by depositary receipts) and in lieu thereof, an adjustment in cash
will be made based on the market price of the Junior Preferred Stock on the last
trading day prior to the date of exercise.
At any time prior to the acquisition by a person or group of affiliated
or associated persons of beneficial ownership of 20% or more of the outstanding
shares of Common Stock, the Board of Directors of the Company may redeem the
Company Rights in whole, but not in part, at a price of $.01 per Company Right
(the Redemption Price). The redemption of the Company Rights may be made
effective at such time, on such basis and with such conditions as the Company's
Board of Directors may determine, in its sole discretion. Immediately upon any
redemption of the Company Rights, the right to exercise the Company Rights will
terminate and the only right of the holders of Company Rights will be to receive
the Redemption Price.
The terms of the Company Rights may be amended by the Board of
Directors of the Company without the consent of the holders of the Company
Rights, including an amendment to decrease the threshold at which a person
becomes an Acquiring Person from 20% to not less than 10%, except that from and
after such time as any person becomes an Acquiring Person no such amendment may
adversely affect the interests of the holders of the Company Rights.
Until a Company Right is exercised, the holder thereof, as such, will
have no rights as a shareowner of the Company, including, without limitation,
the right to vote or to receive dividends.
The Company Rights will have certain antitakeover effects. The Company
Rights will cause substantial dilution to a person or group that attempts to
acquire the Company on terms not approved by the Company's Board of Directors,
except pursuant to an offer conditioned on a substantial number of Company
Rights being acquired. The Company Rights should not interfere with any merger
or business combination approved by the Company's Board of Directors, since the
Company Rights may be redeemed by the Company at the Redemption Price prior to
the time that a person or group has become an Acquiring Person.
The foregoing summary of certain terms of the Company Rights does not
purport to be complete and is qualified by reference to the Company Rights
Agreement, a copy of which is incorporated by reference into the Registration
Statement filed with the Commission covering the shares of Common Stock to which
this Prospectus relates.
ADDITIONAL INFORMATION
Section 145 of the Delaware General Corporation Law and the By-Laws of
the Company provide for indemnification of the Company's officers and directors,
who are also covered by certain insurance policies maintained by the Company.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, the Company has been informed that in the opinion
of the Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable.
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LEGAL MATTERS
The legality of the shares of Common Stock offered hereby has been
passed upon for the Company by William J. Calise, Jr., Esq., Senior Vice
President, General Counsel and Secretary of the Company.
EXPERTS
The consolidated financial statements and related financial statement
schedule of the Company incorporated in this Prospectus by reference to the
Company's Annual Report on Form 10-K for the fiscal year ended September 30,
1996 have been audited by Deloitte & Touche LLP, independent auditors, as stated
in their report also incorporated herein by reference, and have been so
incorporated in reliance upon such report given upon the authority of that firm
as experts in auditing and accounting.
No dealer, salesman or other person is authorized to give any
information or to make any representations other than those contained in this
Prospectus in connection with the offer made by this Prospectus and, if given or
made, such information or representations must not be relied upon as having been
authorized by the Company. Neither the delivery of this Prospectus nor any sale
made hereunder shall, under any circumstances, create any implication that there
has been no change in the affairs of the Company since the date hereof or that
the information contained or incorporated by reference herein is correct as of
any time subsequent to its date. This Prospectus does not constitute an offer to
sell or a solicitation of an offer to buy the securities offered hereby by
anyone in any state or other jurisdiction in which such offer or solicitation is
not authorized or in which the person making such offer or solicitation is not
qualified to do so or to anyone to whom it is unlawful to make such offer or
solicitation.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
Amount
Commission Registration Fee................................ $11,117
Attorneys' Fees and Expenses............................... 15,000
Accountants' Fees and Expenses............................. 15,000
Blue Sky Expenses (including legal fees)................... 2,000
Miscellaneous.............................................. 2,500
-------
Total............................................. $45,617
=======
*Estimated. To be paid pro rata by the holders of the Transferred
Options.
Item 15. Indemnification of Directors and Officers.
The Delaware General Corporation permits Delaware corporations to
eliminate or limit the monetary liability of directors for breach of their
fiduciary duty of care, subject to certain limitations (8 D.G.C.L. sec.
102(b)(7)) and also provides for indemnification of directors, officers,
employees and agents subject to certain limitations (8 D.G.C.L. sec. 145).
The last paragraph of Article Seventh of the Company's Restated
Certificate of Incorporation eliminates monetary liability of directors for
breach of fiduciary duty as directors to the extent permitted by Delaware law.
Section 13 of Article III of the Company By-Laws and the appendix
thereto entitled Procedures for Submission and Determination of Claims for
Indemnification Pursuant to Article III, Section 13 of the By-Laws provides, in
substance, for the indemnification of directors, officers, employees and agents
of the Company to the extent permitted by Delaware law.
The Company's directors and officers are insured against certain
liabilities for actions taken in such capacities, including liabilities under
the Securities Act.
In addition, the Company and certain other persons may be entitled
under agreements entered into with agents or underwriters to indemnification by
such agents or underwriters against certain liabilities, including liabilities
under the Securities Act, or to contribution with respect to payments which the
Company or such persons may be required to make in respect thereof.
Item 16. List of Exhibits.
3-a - Restated Certificate of Incorporation of the Company, as
amended, filed as Exhibit 3-a-1 to the Company's Annual
Report on Form 10-K for the year ended September 30, 1996,
is incorporated herein by reference.
3-b - By-Laws of the Company, filed as Exhibit 3-b-1 to the
Company's Annual Report on Form 10-K for the year ended
September 30, 1996, is incorporated herein by reference.
4-a - Rights Agreement between the Company and ChaseMellon
Shareholder Services, L.L.C., as rights agent, dated as of
November 30, 1996, filed as Exhibit 4-c to Registration
Statement No. 333-17031, is incorporated herein by
reference.
4-b-1 - Copy of the Company's 1988 Long-Term Incentives Plan, as
amended through November 30, 1994, filed as Exhibit 10-d-1
to the Company's Annual Report on Form 10-K for the year
ended September 30, 1994, is incorporated herein by
reference.
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<PAGE>
4-b-2 - Forms of Stock Option Agreement under the Company's 1988
Long-Term Incentives Plan for options granted after
November 1, 1993 and before December 1, 1994, filed as
Exhibit 10-d-6 to the Company's Annual Report on Form 10-K
for the year ended September 30, 1993, are incorporated
herein by reference.
4-b-3 - Forms of Stock Option Agreement under the Company's 1988
Long-Term Incentives Plan for options granted after
December 1, 1994, filed as Exhibit 10-d-7 to the Company's
Annual Report on Form 10-K for the year ended September
30, 1994, are incorporated herein by reference.
4-c-1 - Copy of resolution adopted by the Board of Directors of
the Company, adopted on November 6, 1996, amending the
Company's 1988 Long-Term Incentives Plan and 1995
Long-Term Incentives Plan, filed as Exhibit 4-g-1 to
Registration Statement 333-17055, is incorporated herein
by reference.
4-c-2 - Copy of resolution adopted by the Board of Directors of
the Company on November 6, 1996, adjusting outstanding
awards under the Company's (i) 1979 Stock Plan for Key
Employees, (ii) 1988 Long-Term Incentives Plan, (iii) 1995
Long-Term Incentives Plan and (iv) Directors Stock Plan,
filed as Exhibit 4-g-2 to Registration Statement
333-17055, is incorporated herein by reference.
4-d-1 - Copy of resolution of the Board of Directors of the
Company, adopted November 6, 1996, authorizing the
assignment of certain compensation and employee benefit
plans to New Rockwell International Corporation, including
the Company's (i) 1979 Stock Plan for Key Employees, (ii)
1988 Long-Term Incentives Plan, (iii) 1995 Long-Term
Incentives Plan, (iv) Directors Stock Plan, (v) Incentive
Compensation Plan, (vi) Deferred Compensation Plan and
(vii) Annual Incentive Compensation Plan for Senior
Executive Officers, filed as Exhibit 4-g-3 to Registration
Statement 333-17055, is incorporated herein by reference.
4-d-2 - Copy of resolution of the Board of Directors of New
Rockwell International Corporation, adopted December 4,
1996, assuming and adopting the Company's (i) 1979 Stock
Plan for Key Employees, (ii) 1988 Long-Term Incentives
Plan, (iii) 1995 Long-Term Incentives Plan, (iv) Directors
Stock Plan, (v) Incentive Compensation Plan, (vi) Deferred
Compensation Plan and (vii) Annual Incentive Compensation
Plan for Senior Executive Officers, filed as Exhibit
10-h-2 to the Company's Annual Report on Form 10-K for the
Year ended September 30, 1996, is incorporated herein by
reference.
5 - Opinion of William J. Calise, Jr., Esq., Senior Vice
President, General Counsel and Secretary of the Company,
as to the legality of the shares covered by this
Registration Statement.
23-a - Consent of Deloitte & Touche LLP, independent auditors,
set forth at page II-5 of this Registration Statement.
23-b - Consent of William J. Calise, Jr., Esq., Senior Vice
President, General Counsel and Secretary of the Company,
contained in his opinion filed as Exhibit 5 to this
Registration Statement.
23-c - Consent of Battle Fowler LLP, set forth at page II-5 of
this Registration Statement.
24 - Powers of Attorney authorizing certain persons to sign
this Registration Statement on behalf of certain directors
and officers of the Company.
Item 17. Undertakings.
A. The Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act; (ii) to reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in this Registration Statement; and (iii) to include any material
information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in this Registration Statement; provided, however, that
clauses (i) and (ii) do not apply if the information required to be
included in a post-effective amendment by those clauses is contained in
periodic reports filed with or furnished to the Commission by the
Company pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
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<PAGE>
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
B. Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a director, officer
or controlling person of the Company in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Company will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Seal Beach and the State
of California on the 7th day of April, 1997.
ROCKWELL INTERNATIONAL CORPORATION
By /s/ William J. Calise, Jr.
(William J. Calise, Jr., Senior Vice President,
General Counsel and Secretary)
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement on Form S-3 has been signed on the 7th day of April,
1997 by the following persons in the capacities indicated:
Signature Title
Donald R. Beall* Chairman of the Board and Chief Executive
Officer (principal executive officer) and
Director
Don H. Davis, Jr.* Director
Lew Allen, Jr.* Director
Richard M. Bressler* Director
Judith L. Estrin* Director
William H. Gray, III* Director
James Clayburn La Force, Director
Jr.*
William T. McCormick, Jr.* Director
John D. Nichols* Director
Bruce M. Rockwell* Director
William S. Sneath* Director
Joseph F. Toot, Jr.* Director
W. Michael Barnes* Senior Vice President, Finance & Planning and
Chief Financial Officer (principal financial
officer)
Lawrence J. Komatz* Vice President and Controller (principal
accounting officer)
*By /s/ William J. Calise, Jr.
(William J. Calise, Jr., Attorney-in-fact)**
** By authority of the powers of attorney filed as Exhibit 24 to this
Registration Statement.
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Rockwell International Corporation on Form S-3 of our report dated
November 6, 1996 (December 6, 1996 as to the sale of the Aerospace and Defense
business to The Boeing Company described in Note 1) appearing in the Annual
Report on Form 10-K of Rockwell International Corporation for the year ended
September 30, 1996 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Pittsburgh, Pennsylvania
April 3, 1997
---------------------
CONSENT OF COUNSEL
The consent of William J. Calise, Jr., Esq., Senior Vice President,
General Counsel and Secretary of the Company, is contained in his opinion filed
as Exhibit 5 hereto.
---------------------
CONSENT OF COUNSEL
We hereby consent to the reference to this firm and to the inclusion of
the summary of our opinion under the caption "Tax Consequences" in the
Prospectus related to the Registration Statement on Form S-3 filed by Rockwell
International Corporation.
BATTLE FOWLER LLP
New York, New York
April 7, 1997
II-5
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
3-a Restated Certificate of Incorporation of the
Company, as amended, filed as Exhibit 3-a-1 to
the Company's Annual Report on Form 10-K for the
year ended September 30, 1996, is incorporated
herein by reference.
3-b By-Laws of the Company, filed as Exhibit 3-b-1
to the Company's Annual Report on Form 10-K for
the year ended September 30, 1996, is
incorporated herein by reference.
4-a Rights Agreement between the Company and
ChaseMellon Shareholder Services, L.L.C., as
rights agent, dated as of November 30, 1996,
filed as Exhibit 4-c to Registration Statement
No. 333-17031, is incorporated herein by
reference.
4-b-1 Copy of the Company's 1988 Long-Term Incentives
Plan, as amended through November 30, 1994,
filed as Exhibit 10-d-1 to the Company's Annual
Report on Form 10-K for the year ended September
30, 1994, is incorporated herein by reference.
4-b-2 Forms of Stock Option Agreement under the
Company's 1988 Long-Term Incentives Plan for
options granted after November 1, 1993 and
before December 1, 1994, filed as Exhibit 10-d-6
to the Company's Annual Report on Form 10-K for
the year ended September 30, 1993, are
incorporated herein by reference.
4-b-3 Forms of Stock Option Agreement under the
Company's 1988 Long-Term Incentives Plan for
options granted after December 1, 1994, filed as
Exhibit 10-d-7 to the Company's Annual Report on
Form 10-K for the year ended September 30, 1994,
are incorporated herein by reference.
4-c-1 Copy of resolution adopted by the Board of
Directors of the Company, adopted on November 6,
1996, amending the Company's 1988 Long-Term
Incentives Plan and 1995 Long-Term Incentives
Plan, filed as Exhibit 4-g-1 to Registration
Statement 333-17055, is incorporated herein by
reference.
4-c-2 Copy of resolution adopted by the Board of
Directors of the Company on November 6, 1996,
adjusting outstanding awards under the Company's
(i) 1979 Stock Plan for Key Employees, (ii) 1988
Long-Term Incentives Plan, (iii) 1995 Long-Term
Incentives Plan and (iv) Directors Stock Plan,
filed as Exhibit 4-g-2 to Registration Statement
333-17055, is incorporated herein by reference.
4-d-1 Copy of resolution of the Board of Directors of
the Company, adopted November 6, 1996,
authorizing the assignment of certain
compensation and employee benefit plans to New
Rockwell International Corporation, including
the Company's (i) 1979 Stock Plan for Key
Employees, (ii) 1988 Long-Term Incentives Plan,
(iii) 1995 Long-Term Incentives Plan, (iv)
Directors Stock Plan, (v) Incentive Compensation
Plan, (vi) Deferred Compensation Plan and (vii)
Annual Incentive Compensation Plan for Senior
Executive Officers, filed as Exhibit 4-g-3 to
Registration Statement 333-17055, is
incorporated herein by reference.
4-d-2 Copy of resolution of the Board of Directors of
New Rockwell International Corporation, adopted
December 4, 1996, assuming and adopting the
Company's (i) 1979 Stock Plan for Key Employees,
(ii) 1988 Long-Term Incentives Plan, (iii) 1995
Long-Term Incentives Plan, (iv) Directors Stock
Plan, (v) Incentive Compensation Plan, (vi)
Deferred Compensation Plan and (vii) Annual
Incentive Compensation Plan for Senior Executive
Officers, filed as Exhibit 10-h-2 to the
Company's Annual Report on Form 10-K for the
Year ended September 30, 1996, is incorporated
herein by reference.
5 Opinion of William J. Calise, Jr., Esq., Senior
Vice President, General Counsel and Secretary of
the Company, as to the legality of the shares
covered by this Registration Statement.
II-1
<PAGE>
Exhibit Number Description
23-a Consent of Deloitte & Touche LLP, independent
auditors, set forth at page II-5 of this
Registration Statement.
23-b Consent of William J. Calise, Jr., Esq., Senior
Vice President, General Counsel and Secretary of
the Company, contained in his opinion filed as
Exhibit 5 to this Registration Statement.
23-c Consent of Battle Fowler LLP, set forth at page
II-5 of this Registration Statement.
24 Powers of Attorney authorizing certain persons
to sign this Registration Statement on behalf of
certain directors and officers of the Company.
II-2
<PAGE>
Exhibit 5
---------
[Rockwell International Corporation Letterhead]
April 7, 1997
Rockwell International Corporation
2201 Seal Beach Boulevard
Seal Beach, California 90740
Ladies and Gentlemen:
I am Senior Vice President, General Counsel and Secretary of Rockwell
International Corporation, a Delaware corporation (the "Company"), and I am
delivering this opinion in connection with the filing on this date by the
Company of a Registration Statement on Form S-3 (the "Registration Statement")
registering under the Securities Act of 1933, as amended (the "Securities Act"),
580,000 shares of Common Stock, par value $1.00 per share (including the
associated Preferred Share Purchase Rights) (the "Common Shares") that may be
issued to permitted transferees ("Permitted Transferees") upon the exercise of
transferred options ("Transferred Options") assigned to them by certain
participants in the Rockwell International Corporation 1988 Long-Term Incentives
Plan ("1988 LTIP") in accordance with the terms of that Plan.
I have examined such documents, records and matters of law as I have deemed
necessary as a basis for the opinions hereinafter expressed.
On the basis of the foregoing, and having regard for legal considerations that I
deemed relevant, I am of the opinion that when the Registration Statement
becomes effective under the Securities Act, any Common Shares issued and
delivered to Permitted Transferees upon the exercise of Transferred Options in
accordance with the 1988 LTIP will, when so delivered, be legally issued, fully
paid and non-assessable.
I hereby consent to the filing of this opinion as an Exhibit to the Registration
Statement.
I express no opinion herein as to any laws other than the General Corporation
Law of the State of Delaware and the Federal laws of the United States.
Very truly yours,
/s/ William J. Calise, Jr.
William J. Calise, Jr.
<PAGE>
Exhibit 24
----------
POWER OF ATTORNEY
I, the undersigned Director and/or Officer of Rockwell International
Corporation, a Delaware corporation (the Company), hereby constitute WILLIAM J.
CALISE, JR., EDWARD T. MOEN, II AND DAVID E. EAGAN, and each of them singly, my
true and lawful attorneys with full power to them and each of them to sign for
me, and in my name and in the capacity or capacities indicated below (1) a
Registration Statement on Form S-3, and any and all amendments (including
post-effective amendments) and supplements thereto, for the purpose of
registering under the Securities Act of 1933, as amended, (i) up to 580,000
shares of Common Stock, par value $1.00 per share (the Securities), of the
Corporation acquired or which may be acquired by permitted transferees upon the
exercise of transferable options assigned or to be assigned to them by certain
participants in the Corporation's 1988 Long-Term Incentives Plan in accordance
with that Plan and (ii) the offer and resale by any such permitted transferee
who may be deemed to be an "affiliate" of the Corporation within the meaning of
Rule 405 under the Securities Act of 1933, as amended (Selling Shareholder), of
Securities so acquired or which may be acquired by such Selling Shareholder upon
exercise of any such transferable option.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Donald R. Beall Chairman of the Board and Chief Executive Officer March 14, 1997
- --------------------------------------------------
(Donald R. Beall) (principal executive officer) and Director
/s/ Don H. Davis, Jr. Director March 14, 1997
- --------------------------------------------------
(Don H. Davis, Jr.)
/s/ Lew Allen, Jr. Director March 14, 1997
- --------------------------------------------------
(Lew Allen, Jr.)
/s/ Richard M. Bressler Director March 14, 1997
- --------------------------------------------------
(Richard M. Bressler)
/s/ Judith L. Estrin Director March 14, 1997
- --------------------------------------------------
(Judith L. Estrin)
/s/ William H. Gray, III Director March 14, 1997
- --------------------------------------------------
(William H. Gray, III)
/s/ James Clayburn La Force, Jr. Director March 14, 1997
- --------------------------------------------------
(James Clayburn La Force, Jr.)
/s/ William T. McCormick, Jr. Director March 14, 1997
- --------------------------------------------------
(William T. McCormick, Jr.)
/s/ John D. Nichols Director March 14, 1997
- --------------------------------------------------
(John D. Nichols)
/s/ Bruce M. Rockwell Director March 14, 1997
- --------------------------------------------------
(Bruce M. Rockwell)
/s/ William S. Sneath Director March 14, 1997
- --------------------------------------------------
(William S. Sneath)
/s/ Joseph F. Toot, Jr. Director March 14, 1997
- --------------------------------------------------
(Joseph F. Toot, Jr.)
</TABLE>
-1-
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ W. M. Barnes Senior Vice President, Finance & Planning and March 14, 1997
- --------------------------------------------------
(W. M. Barnes) Chief Financial Officer
(principal financial officer)
/s/ Lawrence J. Komatz Vice President and Controller March 14, 1997
- --------------------------------------------------
(Lawrence J. Komatz) (principal accounting officer)
</TABLE>
-2-
