As filed with the Securities and Exchange Commission on July 22, 1998
Registration No. 333- ____________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INTERNATIONAL SPECIALTY PRODUCTS INC.
(Exact name of registrant as specified in its charter)
DELAWARE 51-0376469
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
818 WASHINGTON STREET
WILMINGTON, DELAWARE 19801
(302) 428-0847
(Address, including zip code, and telephone number, including
area code, of registrants' principal executive office)
RICHARD A. WEINBERG, ESQ.
C/O ISP MANAGEMENT COMPANY, INC.
1361 ALPS ROAD
WAYNE, NEW JERSEY 07470
(973) 628-3000
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
With a copy to:
STEPHEN E. JACOBS, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement as determined by
market conditions.
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, as amended (the "Securities Act"), other than securities offered only
in connection with dividend or interest reinvestment plans, please check the
following box: [ X ]
NYFS01...:\01\47201\0001\2011\PRO7168N.31C
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If this Form is filed to register additional securities for an offering
pursuant to Rule 462(c) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Amount of
Title of Shares to be Registered Aggregate Registration
Offering Price (1) Fee (2)
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Debt Securities (3) (4) (4)
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Common Stock (5) (4) (4)
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Total $1,000,000,000(6) $295,000
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(1) The proposed maximum aggregate offering price per class of security will be
determined from time to time by the Registrant in connection with the
issuance by the Registrant of the securities registered hereunder.
(2) Calculated pursuant to Rule 457(o) under the Securities Act.
(3) Subject to note (6) below, there is being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold, from time
to time. If any Debt Securities are issued at an original issue discount,
then the offering price shall be in such greater principal amount at
maturity as shall result in aggregate gross proceeds to the Company not to
exceed $1.0 billion less the gross proceeds attributable to any securities
previously issued pursuant to this Registration Statement.
(4) Not required to be included in accordance with General Instruction II.D. of
Form S-3 under the Securities Act.
(5) Subject to note (6) below, there is being registered hereunder an
indeterminate number of shares of Common Stock of the Company as may be
sold from time to time.
(6) In no event will the aggregate offering price of all securities issued from
time to time pursuant to this Registration Statement exceed $1.0 billion.
The securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
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, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(A), MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
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SUBJECT TO COMPLETION, DATED JULY 22, 1998
PROSPECTUS
$1,000,000,000
INTERNATIONAL SPECIALTY PRODUCTS INC.
DEBT SECURITIES
COMMON STOCK
International Specialty Products Inc., a Delaware corporation (the
"Company"), may offer from time to time, in one or more series, (i) debt
securities (the "Debt Securities"), in amounts, at prices and on terms to be
determined by market conditions at the time of offering or (ii) shares of common
stock, $0.01 par value per share ("Common Stock"), in amounts, at prices and on
terms to be determined by market conditions at the time of offering. The Debt
Securities and Common Stock are referred to herein collectively as the
"Securities." The Company, formerly known as ISP Holdings Inc., is the successor
to International Specialty Products Inc. ("Old ISP"). Old ISP merged with and
into the Company on July 15, 1998. In connection with the merger, ISP Holdings
Inc. changed its name to International Specialty Products Inc.
The form in which the Securities are to be issued, their specific
designation, aggregate principal amount or aggregate initial offering price,
maturity, if any, rate and times of payment of interest or dividends, if any,
redemption, conversion, and sinking fund terms, if any, voting or other rights,
if any, exercise price and detachability, if any, and other specific terms will
be set forth in a Prospectus Supplement (the "Prospectus Supplement"), together
with the terms of the offering of such Securities. Any such Prospectus
Supplement will also contain information, as applicable, about material United
States Federal income tax considerations relating to the particular Securities
offered thereby.
The Securities will be issued in bearer or registered form, including in the
form of global securities, unless otherwise set forth in the Prospectus
Supplement.
The Company's Common Stock is listed on the New York Stock Exchange ("NYSE")
under the symbol "ISP." Any Prospectus Supplement will also contain information,
where applicable, as to any other listing on a securities exchange of the
Securities covered by such Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
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The Securities may be sold directly by the Company, through agents
designated from time to time or to or through underwriters or dealers. The
Company, together with its agents or underwriters, if any, reserves the right to
accept or reject in whole or in part any proposed purchase of Securities to be
made directly or through agents or underwriters. If any agents or underwriters
are involved in the sale of any Securities, the names of such agents or
underwriters and any applicable fees, commissions or discounts and the net
proceeds to the Company will be set forth in the applicable Prospectus
Supplement. See "Plan of Distribution." This Prospectus may not be used to
consummate any sale of Securities unless accompanied by a Prospectus Supplement.
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____ __, 1998.
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IN CONNECTION WITH AN OFFERING OF THE SECURITIES, CERTAIN PERSONS
PARTICIPATING IN SUCH OFFERING MAY ENGAGE IN TRANSACTIONS THAT STABILIZE,
MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE SECURITIES, INCLUDING
OVERALLOTMENT, STABILIZING AND SHORT-COVERING TRANSACTIONS AND THE
IMPOSITION OF PENALTY BIDS. SEE "PLAN OF DISTRIBUTION."
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY UNDERWRITER, DEALER OR AGENT. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY SECURITIES BY
ANYONE IN ANY 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 ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
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AVAILABLE INFORMATION
THE COMPANY IS SUBJECT TO THE INFORMATIONAL REQUIREMENTS OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"), AND IN ACCORDANCE
THEREWITH FILES REPORTS, PROXY STATEMENTS AND OTHER INFORMATION WITH THE
SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION"). SUCH REPORTS, PROXY
STATEMENTS AND OTHER INFORMATION CAN BE INSPECTED AND COPIED AT THE OFFICES OF
THE COMMISSION AT ROOM 1024, JUDICIARY PLAZA, 450 FIFTH STREET, N.W., WASHINGTON
D.C. 20549, AS WELL AS AT THE FOLLOWING REGIONAL OFFICES OF THE COMMISSION: THE
CITICORP CENTER, 500 WEST MADISON STREET, SUITE 1400, CHICAGO, ILLINOIS 60661
AND SEVEN WORLD TRADE CENTER, SUITE 1300, NEW YORK, NEW YORK 10048. COPIES OF
SUCH MATERIAL CAN ALSO BE OBTAINED FROM THE PUBLIC REFERENCE SECTION OF THE
COMMISSION AT 450 FIFTH STREET, N.W., WASHINGTON, D.C. 20549 AT PRESCRIBED
RATES. IN ADDITION, THE COMMISSION MAINTAINS A WORLD WIDE WEB SITE ON THE
INTERNET AT HTTP://WWW.SEC.GOV THAT CONTAINS REPORTS, PROXY AND INFORMATION
STATEMENTS AND OTHER INFORMATION REGARDING REGISTRANTS THAT FILE ELECTRONICALLY
WITH THE COMMISSION. SUCH REPORTS, PROXY STATEMENTS AND OTHER INFORMATION
CONCERNING THE COMPANY ARE ALSO FILED WITH THE NYSE, AS A RESULT OF THE LISTING
OF COMMON STOCK OF THE COMPANY ON THE NYSE, AND MAY BE INSPECTED AT ITS OFFICES
AT 20 BROAD STREET, NEW YORK, NEW YORK 10005.
THE COMPANY HAS FILED WITH THE COMMISSION A REGISTRATION STATEMENT ON FORM
S-3 (TOGETHER WITH ALL AMENDMENTS AND EXHIBITS THERETO, THE "REGISTRATION
STATEMENT") UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
WITH RESPECT TO THE SECURITIES. THIS PROSPECTUS, WHICH CONSTITUTES PART OF THE
REGISTRATION STATEMENT, DOES NOT CONTAIN ALL OF THE INFORMATION SET FORTH IN THE
REGISTRATION STATEMENT, CERTAIN PORTIONS OF WHICH HAVE BEEN OMITTED IN
ACCORDANCE WITH THE RULES AND REGULATIONS OF THE COMMISSION. STATEMENTS
CONTAINED IN THIS PROSPECTUS AS TO THE CONTENTS OF ANY CONTRACT OR OTHER
DOCUMENT ARE NOT NECESSARILY COMPLETE, AND IN EACH INSTANCE, REFERENCE IS MADE
TO THE COPY OF SUCH CONTRACT OR DOCUMENT FILED AS AN EXHIBIT TO THE REGISTRATION
STATEMENT, EACH SUCH STATEMENT BEING QUALIFIED IN ALL RESPECTS BY SUCH
REFERENCE. FOR FURTHER INFORMATION WITH RESPECT TO THE COMPANY, REFERENCE IS
MADE TO THE REGISTRATION STATEMENT.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed with the Commission and are
incorporated herein by reference:
(a) The Annual Report on Form 10-K of Old ISP, as amended, for the
fiscal year ended December 31, 1997;
(b) The Quarterly Report on Form 10-Q of Old ISP for the quarter
ended March 29, 1998;
(c) The Current Report on Form 8-K of Old ISP filed on April 1,
1998;
(d) The Proxy Statement of Old ISP on Schedule 14A filed on June
16, 1998;
(e) The Annual Report on Form 10-K of the Company for the fiscal
year ended December 31, 1997; and
(f) The Quarterly Report on Form 10-Q of the Company for the
quarter ended March 29, 1998.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the initial filing with the Commission of the
Registration Statement of which this Prospectus is a part and prior to the
termination of the offering of the Securities shall be deemed to be incorporated
by reference in this Prospectus and to be a part hereof from the date of filing
such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus. Subject to the
foregoing, all information appearing in this Prospectus is qualified in its
entirety by the information appearing in the documents incorporated by
reference.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the request of such person, a copy of any or all
the documents incorporated herein by reference, other than exhibits to such
documents (unless such exhibits are specifically incorporated by reference into
such documents). Requests for such documents should be directed to the Vice
President of Investor Relations, International Specialty Products Inc., 1361
Alps Road, Wayne, New Jersey, 07470, telephone number (973) 628-3463.
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FORWARD-LOOKING STATEMENTS
This Prospectus and accompanying Prospectus Supplement (including the
documents incorporated by reference herein or therein) may contain certain
"forward-looking statements" intended to qualify for the safe harbor from
liability established by the Private Securities Litigation Reform Act of 1995.
These forward-looking statements generally can be identified by use of
statements that include phrases such as the Company or its management
"believes," "expects," anticipates," "intends," "plans," "foresees" or other
words or phrases of similar import. Similarly, statements that describe the
Company's objectives, plans or goals also are forward-looking statements. All
such forward-looking statements are subject to certain risks and uncertainties
that could cause actual results to differ materially from those contemplated by
the relevant forward-looking statement. For discussion of such risks,
uncertainties and assumptions, see the applicable Prospectus Supplement
pertaining to any Securities offered hereunder and/or in the periodic reports of
the Company. Stockholders, potential investors and other readers are urged to
consider these factors carefully in evaluating the forward-looking statements.
The forward-looking statements included herein are made only as of the date of
this Prospectus and the Company
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undertakes no obligation to publicly update such forward-looking statements to
reflect subsequent events or circumstances.
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THE COMPANY
The Company is a leading multinational manufacturer of specialty
chemicals, mineral products and filter products.
The Company, incorporated in Delaware in 1996, operates its business
exclusively through 20 domestic subsidiaries, including ISP Chemicals Inc., ISP
Technologies Inc., ISP Van Dyk Inc., ISP Fine Chemicals Inc. and ISP Freetown
Fine Chemicals Inc. and 39 international subsidiaries. The address and telephone
number of the principal executive offices of the Company are 818 Washington
Street, Wilmington, Delaware 19801, (302) 428-0847.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges was 2.70 for the fiscal quarter
ended March 29, 1998 and 2.43, 3.91, 4.05, 3.32 and 2.83 for the fiscal years
ended December 31, 1997, 1996, 1995, 1994 and 1993, respectively. For purposes
of these computations, earnings consist of income from continuing operations
before income taxes, minority interest and extraordinary items plus fixed
charges. Fixed charges consist of interest on indebtedness (including
amortization of debt issuance costs) plus that portion of lease rental expense
representative of interest (estimated to be one-third of lease rental expense).
USE OF PROCEEDS
Unless otherwise set forth in a Prospectus Supplement, the net proceeds
from the offering of the Securities will be used to refinance or repurchase
existing debt securities and for general corporate purposes, which may include
acquisitions, working capital and capital expenditures. When a particular series
of Securities is offered, the Prospectus Supplement relating thereto will set
forth the Company's intended use for the net proceeds received from the sale of
such Securities.
DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities may be offered from time to time by the Company as
senior debt of the Company and will be issued under an Indenture (the
"Indenture") to be entered into between the Company and the party to be named in
a Prospectus Supplement as trustee under the Indenture (the "Trustee"). The Debt
Securities offered by this Prospectus and the accompanying Prospectus Supplement
are referred to herein as the "Debt Securities." The form of the Indenture is
filed as an exhibit to the Registration Statement. See "Available Information."
The terms of the Indenture are also governed by certain provisions of the Trust
Indenture Act of 1939, as amended (the "TIA"). The following summary of certain
material provisions of the Debt Securities does not purport to be complete and
is qualified in its entirety by reference to the Indenture. All capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
such terms in the Indenture. For a summary of certain definitions used in this
section, see "Certain Definitions" below.
GENERAL
The Indenture will provide for the issuance of Debt Securities in series
up to the aggregate amount from time to time authorized by the Company for each
series. A Prospectus Supplement will set forth the following terms of and
information relating to the Debt Securities (to the extent such terms are
applicable to such Debt Securities) in respect of which this Prospectus is
delivered: (1) the designation of such Debt Securities; (2) the classification
of such Securities as Senior Debt Securities; (3) the aggregate principal amount
(or principal amount at maturity) of such Debt Securities; (4) the percentage of
their principal amount (or principal amount at maturity) at which such Debt
Securities will be issued; (5) the date or dates on which such Debt Securities
will mature; (6) the rate or rates, if any (which may be fixed or variable), per
annum, at which such Debt Securities will bear or accrete interest, or the
method of determination of such rate or rates; (7) the times and places at which
such interest, if any, will be payable; (8) provisions for sinking, purchase or
other analogous funds, if any; (9) the date
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or dates, if any, after which such Debt Securities may be redeemed at the option
of the Company or of the holder and the redemption price or prices; (10) the
date or the dates, if any, after which such Debt Securities may be converted or
exchanged at the option of the holder into or for shares of Common Stock or
other securities of the Company and the terms for any such conversion or
exchange; and (11) any other specific terms of (including covenants, if any,
applicable to) a series of Debt Securities. Principal, premium, if any, and
interest, if any, will be payable and the Debt Securities offered hereby will be
transferable, at the corporate trust office of the Trustee's agent, provided
that payment of interest, if any, may be made at the option of the Company by
check mailed to the address of the person entitled thereto as it appears in the
Security Register.
If a Prospectus Supplement specifies that a series of Debt Securities is
denominated in a currency or currency unit other than United States dollars,
such Prospectus Supplement shall also specify the denomination in which such
Debt Securities will be issued and the coin or currency in which the principal,
premium, if any, and interest, if any, on such Debt Securities will be payable,
which may be United States dollars based upon the exchange rate for such other
currency or currency unit existing on or about the time a payment is due.
Material United States federal income tax considerations applicable to any Debt
Securities so denominated will be described in the Prospectus Supplement
relating to any such Debt Securities.
The Debt Securities may be issued in registered or bearer form and, unless
otherwise specified in a Prospectus Supplement, in denominations of $1,000 and
$5,000, respectively, and integral multiples thereof. Debt Securities may be
issued in book-entry form, without certificates. Any such issue will be
described in the Prospectus Supplement relating to such Debt Securities. No
service charge will be made for any transfer or exchange of the Debt Securities,
but the Company or the Trustee may require payment of a sum sufficient to cover
any tax or other government charge payable in connection therewith.
Debt Securities may be issued under the Indenture as Original Issue
Discount Securities to be sold at a substantial discount from their stated
principal amount at maturity. Material United States federal income tax
consequences and other considerations applicable thereto will be described in
the Prospectus Supplement relating to such Debt Securities.
MERGER, CONSOLIDATION AND SALE OF ASSETS
The Indenture will provide that the Company shall not consolidate with or
merge into any other Person or sell, convey, transfer or lease its properties
and assets substantially as an entirety to any Person, unless: (1) the entity
formed by such consolidation or into which the Company is merged or the Person
which acquires by sale, conveyance or transfer, or which leases, the properties
and assets of the Company substantially as an entirety (A) shall be a
corporation, partnership, limited liability company or trust organized and
validly existing under the laws of the United States of America, any state
thereof or the District of Columbia and (B) shall expressly assume, by an
indenture supplemental thereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, the obligations of the Company for the
due and punctual payment of the principal of, premium, if any, and interest, if
any, on all the Debt Securities and the performance and observance of every
covenant of the Indenture on the part of the Company to be performed or
observed; (2) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing; and (3) the Company or
such Person shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and such supplemental indenture comply with the "Merger,
Consolidation and Sale of Assets" provisions of the Indenture and that all
conditions precedent provided for relating to such transaction have been
satisfied. These provisions apply only to a merger or consolidation in which the
Company is not the surviving corporation and to sales, conveyances, leases and
transfers by the Company as transferor or lessor.
The Indenture will further provide that upon consolidation by the Company
with any other Person or merger by the Company into any other Person or any
sale, conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety to any Person in accordance with the preceding
paragraph, the
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successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under the Indenture with the same effect as if such successor Person had been
named as the Company therein, and in the event of any such conveyance or
transfer, the Company, as applicable, except in the case of a lease, shall be
discharged of all obligations and covenants under the Indenture and the Debt
Securities and the coupons, if any.
EVENTS OF DEFAULT
The following will be "Events of Default" under the Indenture with respect
to Debt Securities of any series:
(1) default in the payment of interest on any Debt Securities of that
series or any related coupon, when such interest or coupon becomes due
and payable, and continuance of such default for a period of 60 days;
or
(2) default in the payment of the principal of (or premium, if any) on any
Debt Securities of that series at its Maturity or upon any redemption
and such default shall continue for five or more days; or
(3) default in the deposit of any sinking fund payment when and as due
pursuant to the terms of the Debt Securities of that series and the
Indenture and such default shall continue for a period of 60 days; or
(4) default in the performance, or breach, of any covenant or warranty in
the Indenture (other than a default in the performance, or breach, of
a covenant or warranty which is specifically dealt with elsewhere
under the "Events of Default" section), and continuance of such
default or breach for a period of 90 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 33-1/3% in
principal amount (or principal amount at maturity, as the case may be)
of all Outstanding Debt Securities of the affected series, a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
thereunder; or
(5) the entry of a decree or order by a court having jurisdiction in the
premises adjudging the Company bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under the
Federal Bankruptcy Code or any other applicable federal or state law,
or appointing a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company, or of any substantial part
of the property of the Company, or ordering the winding up or
liquidation of the affairs of the Company, and the continuance of any
such decree or order unstayed and in effect for a period of 90
consecutive days; or
(6) the institution by the Company of proceedings to be adjudicated
bankrupt or insolvent, or the consent by the Company to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by the Company of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code or any
other applicable federal or state law, or the consent by the Company,
to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company, or of any substantial part of the
property of the Company, or the making by it of an assignment for the
benefit of creditors; or
(7) any other Event of Default provided with respect to Debt Securities of
that series.
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The failure to redeem any Security subject to a Conditional Redemption is
not an Event of Default if any event on which such redemption is so conditioned
does not occur and is not waived before the scheduled redemption date.
If an Event of Default described in clause (1), (2), (3), (4) or (7) above
with respect to Debt Securities of any series at the time Outstanding occurs and
is continuing, then in every such case the Trustee or the Holders of not less
than 33-1/3% in principal amount (or principal amount at maturity, as
applicable) of the Outstanding Debt Securities of that series may declare the
principal amount (or, if the Debt Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all of the Debt Securities of that series and
interest accrued thereon to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified portion thereof) shall
become immediately due and payable. If an Event of Default described in clause
(5) or (6) above occurs and is continuing, then the principal amount and
interest accrued thereon of all the Debt Securities shall ipso facto become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder.
At any time after a declaration of acceleration with respect to Debt
Securities of any series (or of all series, as the case may be) has been made,
the Holders of a majority in principal amount (or principal at maturity, as the
case may be) of the Outstanding Debt Securities of that series (or of all
series, as the case may be), by written notice to the Company and the Trustee,
may rescind and annul such declaration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default have been cured or waived except nonpayment of principal or interest
that has become due solely because of acceleration. No such rescission shall
affect any subsequent default or impair any right consequent thereto.
Except as otherwise provided in the Indenture, or any supplement thereto,
the Holders of not less than a majority in principal amount (or principal amount
at maturity, as the case may be) of the Outstanding Debt Securities of any
series may on behalf of the Holders of all the Debt Securities of such series
waive any past default described in clause (1), (2), (3), (4) or (7) of the
first paragraph of this section (or, in the case of a default described in
clause (5) or (6) of the first paragraph of this section, the Holders of not
less than a majority in principal amount (or principal amount at maturity, as
applicable) of all Outstanding Debt Securities may waive any such past default),
and its consequences, except a default (i) in respect of the payment of the
principal of (or premium, if any, on) or interest on any Debt Security or any
related coupon, or (ii) in respect of a covenant or provision which under the
Indenture cannot be modified or amended without the consent of the Holder of
each Outstanding Debt Security of such series affected.
Upon any such waiver, any such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of the Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default.
Except to enforce the right to receive payment of principal, premium, if
any, or interest on any Debt Security, no Holder of any Debt Security of any
series or any related coupons shall have any right to institute any proceeding,
judicial or otherwise, with respect to the Indenture, or for the appointment of
a receiver or trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given written notice to the Trustee of a continuing Event
of Default with respect to the Debt Securities of that series; (ii) the Holders
of not less than 33- 1/3% in principal amount (or the principal amount at
maturity, as the case may be) of the Outstanding Debt Securities of that series
in the case of any Event of Default under clause (1), (2), (3), (4) or (7) of
the first paragraph of this section, or, in the case of any Event of Default
described in clause (5) or (6) of the first paragraph of this section, the
Holders of not less than 33-1/3% in principal amount (or the principal amount at
maturity, as the case may be) of all Outstanding Debt Securities, shall have
made written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee under the Indenture; (iii) such
Holder or Holders have offered to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity has failed to institute any such proceeding; and (v) no direction
inconsistent with such written
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request has been given to the Trustee during such 60-day period by the Holders
of a majority or more in principal amount (or the principal amount at maturity,
as the case may be) of the Outstanding Debt Securities of that series in the
case of any Event of Default described in clause (1), (2), (3), (4) or (7) of
the first paragraph of this section, or, in the case of any Event of Default
described in clause (5) or (6) of the first paragraph of this section, by the
Holders of a majority or more in principal amount (or the principal amount at
maturity, as the case may be) of all Outstanding Debt Securities.
During the existence of an Event of Default, the Trustee is required to
exercise such rights and powers vested in it under the Indenture in good faith.
Subject to the provisions of the Indenture relating to the duties of the
Trustee, in case an Event of Default shall occur and be continuing, the Trustee
under the Indenture is not under any obligation to exercise any of its rights or
powers under the Indenture at the request or direction of any of the Holders
unless such Holders shall have offered to the Trustee reasonable security or
indemnity. Subject to certain provisions concerning the rights of the Trustee,
with respect to the Debt Securities of any series, the Holders of not less than
a majority in principal amount (or the principal amount at maturity, as the case
may be) of the Outstanding Debt Securities of such series shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee under the Indenture.
Within 90 days after the occurrence of any Default with respect to Debt
Securities of any series, the Trustee shall transmit in the manner and to the
extent provided in TIA Section 313(c), notice of such Default known to the
Trustee, unless such Default shall have been cured or waived; provided, however,
that, except in the case of a Default in the payment of the principal of (or
premium, if any, on) or interest on any Debt Securities of such series, or in
the payment of any sinking fund installment with respect to Debt Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as the Trustee in good faith determines that the withholding of such notice
is in the interest of the Holders of Debt Securities of such series and any
related coupons.
The Company is required to deliver to the Trustee, within 120 days after
the end of each fiscal year, a brief certificate of its compliance with all of
the conditions and covenants under the Indenture.
DEFEASANCE OR COVENANT DEFEASANCE OF THE INDENTURE
The Indenture will provide that the Company may, at its option and at any
time, terminate its obligations with respect to the Outstanding Debt Securities
of any series ("defeasance"). Such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Debt Securities and any related coupons, except for the following
which shall survive until otherwise terminated or discharged under the
Indenture: (A) the rights of Holders of such Outstanding Debt Securities and any
related coupons (i) to receive, solely from the trust fund described in the
Indenture, payments in respect of the principal of (and premium, if any, on) and
interest, if any, on such Debt Securities and any related coupons when such
payments are due, and (ii) to receive shares of Common Stock or other securities
from the Company upon conversion of any convertible Debt Securities issued
thereunder, (B) obligations of the Company to issue temporary Debt Securities,
register the transfer or exchange of any Debt Securities, replace mutilated,
destroyed, lost or stolen Debt Securities, maintain an office or agency for
payments in respect of the Debt Securities and, if the Company acts as its own
Paying Agent, hold in trust, money to be paid to such Persons entitled to
payment, and with respect to "additional amounts," as contemplated by the
Indenture, if any, on such Debt Securities as contemplated in the Indenture, (C)
the rights, powers, trusts, duties and immunities of the Trustee under the
Indenture and (D) the defeasance provisions of the Indenture. In addition, the
Company may, at its option and at any time, elect to terminate its obligations
with respect to certain covenants that are set forth in the Indenture and any
omission to comply with such obligations shall not constitute a Default or an
Event of Default with respect to the Debt Securities ("covenant defeasance").
In order to exercise either defeasance or covenant defeasance:
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(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee, in trust, for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Debt Securities and any related
coupons, (A) money in an amount (in such currency in which such Debt
Securities and any related coupons are then specified as payable at
Stated Maturity), or (B) U.S. Government Obligations applicable to
such Debt Securities (determined on the basis of the currency in which
such Debt Securities are then specified as payable at Stated Maturity)
which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment of principal
(including any premium) and interest, if any, under such Debt
Securities and any related coupons, money in an amount or (C) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants to pay and discharge
(i) the principal of (and premium, if any, on) and interest, if any,
on the Outstanding Debt Securities and any related coupons on the
Stated Maturity (or any Redemption Date selected by the issuer, if
applicable) of such principal (and premium, if any) or installment of
interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Debt Securities and any related
coupons on the day on which such payments are due and payable in
accordance with the terms of the Indenture and of such Debt Securities
and any related coupons; provided that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such
Government Obligations to said payments with respect to such Debt
Securities and any related coupons. Before such a deposit, the Company
may give to the Trustee, in accordance with the redemption provisions
in the Indenture, a notice of its election to redeem all or any
portion of such Outstanding Debt Securities at a future date in
accordance with the terms of the Debt Securities of such series and
the redemption provisions of the Indenture, which notice shall be
irrevocable. Such irrevocable redemption notice, if given, shall be
given effect in applying the foregoing;
(2) such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a default under, the Indenture;
(3) in the case of a covenant defeasance, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that the Holders of
the Outstanding Debt Securities and any related coupons will not
recognize income, gain or loss for federal income tax purposes as a
result of such covenant defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred;
(4) such defeasance or covenant defeasance shall be effected in compliance
with any additional or substitute terms, conditions or limitations in
connection therewith pursuant to the Indenture; and
(5) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent under the Indenture to either defeasance or
covenant defeasance, as the case may be, have been satisfied.
SATISFACTION AND DISCHARGE
The Indenture shall upon Company Request cease to be of further effect
with respect to any series of Debt Securities (except as to any surviving rights
of registration of transfer or exchange of Debt Securities of such series herein
expressly provided for and the obligation of the Company to pay any "additional
amounts," as contemplated by the Indenture) and the Trustee shall execute proper
instruments acknowledging satisfaction and discharge of the Indenture as to such
series when:
(1) either (A) all Debt Securities of such series theretofore
authenticated and delivered and all coupons, if any, appertaining
thereto (other than (i) coupons appertaining to Securities in bearer
form surrendered for exchange for "registered securities" and maturing
after such exchange, whose
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surrender is not required or has been waived, as provided in the
Indenture, (ii) Debt Securities and coupons of such series which have
been destroyed, lost or stolen and which have been replaced or paid,
as provided in the Indenture, (iii) coupons appertaining to Debt
Securities called for redemption and maturing after the relevant
redemption date, whose surrender has been waived, as provided in the
Indenture, and (iv) Debt Securities and coupons of such series for
whose payment money has theretofore been deposited in trust with the
Trustee or any Paying Agent or segregated and held in trust by the
Company and thereafter repaid to the Company, as provided in the
Indenture) have been delivered to the Trustee for cancellation; or
(B) all Debt Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation (i) have become due and payable, or (ii)
will become due and payable at their Stated Maturity within one year,
or (iii) if redeemable at the option of the Company, are to be called
for redemption within one year under arrangements reasonably
satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company, and the
Company, in the case of (B)(i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount, in the currency in which the Debt
Securities of such series are payable or in U.S. Government
Obligations, sufficient to pay and discharge the entire indebtedness
on such Debt Securities not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and interest to the date
of such deposit (in the case of Debt Securities which have become due
and payable) or to the Stated Maturity or redemption date, as the case
may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent provided for
relating to the satisfaction and discharge of the Indenture as to such series
have been satisfied.
AMENDMENTS AND WAIVERS
The Indenture will provide that at any time and from time to time, the
Company and the Trustee may, without the consent of any holder of Debt
Securities, enter into one or more indentures supplemental thereto for certain
specified purposes, including, among other things, to (i) cure ambiguities,
defects or inconsistencies, or to make any other provisions with respect to
questions or matters arising under the Indenture; (ii) effect or maintain the
qualification of the Indenture under the TIA; (iii) secure any Debt Securities;
(iv) add covenants for the protection of the holders of Debt Securities; (v)
establish the forms or terms of Debt Securities of any series; (vi) make any
other change that does not adversely affect in all material respects the rights
under the Indenture of the holders of Debt Securities thereunder; (vii) add any
Guarantee; (viii) evidence the acceptance of appointment by a successor trustee
and (ix) evidence the succession of another person to the Company and the
assumption by any such successor of the obligations of the Company in accordance
with the Indenture and the Debt Securities. Other amendments and modifications
of the Indenture or the Debt Securities may be made by the Company and the
Trustee with the consent of the holders of not less than a majority of the
aggregate principal amount of all of the then Outstanding Debt Securities of any
series; provided, however, that no such modification or amendment may, without
the consent of the holder of each Outstanding Debt Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of
interest on, any Debt Security or reduce the principal amount thereof or the
rate of interest thereon or any premium payable upon the redemption thereof, or
change any obligation of the Company to pay any "additional amounts"
contemplated by the Indenture (except as contemplated and permitted by certain
provisions of the Indenture), or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to the Indenture or
the amount thereof provable in bankruptcy pursuant to the Indenture, or
adversely affect, after the event giving rise to any right of repayment shall
have occurred, any right of repayment at the option of any Holder of any Debt
Security, or change any place of payment described in the Indenture where, or
the currency in which, any Debt Security or any premium or the interest thereon
is payable, or impair the right to
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institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption or repayment at the option of
the Holder, on or after the redemption date or repayment date, as the case may
be), or adversely affect any right to convert or exchange any Debt Securities as
may be provided pursuant to the Indenture, or (2) reduce the percentage in
principal amount of the Outstanding Debt Securities of any series, the consent
of whose Holders is required for any such supplemental indenture, for any waiver
of compliance with certain provisions of the Indenture or certain defaults
thereunder and their consequences provided for in the Indenture.
SENIOR DEBT
The Debt Securities and coupons appertaining thereto will rank pari passu
with all other unsecured and unsubordinated Debt of the Company.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by and construed in
accordance with the laws of the State of New York. The Indenture is subject to
the provisions of the TIA that are required to be a part thereof and shall, to
the extent applicable, be governed by such provisions.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
Indenture.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Capital Stock" means (a) in the case of a corporation, corporate stock,
(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (c) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (d) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
"Company Request" means a written request or order signed in the name of
the Company by its Chief Executive Officer, its President, its Chief Financial
Officer, any Vice President, its Treasurer or any Assistant Treasurer, its
Secretary or any Assistant Secretary and delivered to the Trustee.
"Conditional Redemption" means a redemption pursuant to a notice of
redemption that provides that it is subject to the occurrence of any event
before the date fixed for such redemption as described in such notice of
redemption.
"Debt" means notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Debt or other obligation of any other
Person and, without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such Debt or
other obligation of such other Person (whether arising by virtue of partnership
arrangements, or by agreement to keep-well, to purchase assets, goods,
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securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for purposes of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part); provided that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Holder" means a Person in whose name a Debt Security is registered in the
Security Register.
"Maturity," when used with respect to any Debt Securities, means the date
on which the principal of such Debt Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chief Executive
Officer, the President, the Chief Financial Officer, any Vice President, the
Treasurer or any Assistant Treasurer and the Secretary or any Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company.
"Original Issue Discount Security" means any Debt Security which provides
for an amount less than the principal amount at maturity thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
the Indenture.
"Outstanding," when used with respect to Debt Securities, means, as of the
date of determination, all Debt Securities theretofore authenticated and
delivered under the Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Debt Securities, or portions thereof, for whose payment, money in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Debt
Securities;
(iii) Debt Securities with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in the
Indenture; and
(iv) Mutilated, destroyed, lost or stolen Debt Securities which have
become or are about to become due and payable which have been
paid pursuant to the Indenture or in exchange for or in lieu of
which other Debt Securities have been authenticated and delivered
pursuant to the Indenture, other than any such Debt Securities in
respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Debt Securities are held by a
bona fide purchaser in whose hands the Debt Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount (or principal amount at maturity) of Outstanding Debt
Securities have given any request, demand, authorization, direction, notice,
consent or waiver under the Indenture, and for the purpose of making the
calculations required by TIA Section 313, Debt Securities owned by the Company
or any Affiliate of the Company shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Debt Securities which
the Trustee knows to be so owned shall be so disregarded. Debt Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee
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the pledgee's right so to act with respect to such Debt Securities and that the
pledgee is not the Company or any Affiliate of the Company.
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of (and premium, if any,
on) or interest, if any, on any Debt Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Stated Maturity," when used with respect to any Debt Security or any
installment of principal thereof or interest thereon, means the date specified
in such Debt Security as the fixed date on which the principal of such Debt
Security or such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which at the time of determination a
Person, directly and/or indirectly through one or more Subsidiaries, owns more
than 50% of the Voting Stock.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which the Indenture was executed, except
that any supplemental indenture executed pursuant to the Indenture shall conform
to the requirements of the Trust Indenture Act as in effect on the date of
execution thereof.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer's option.
"Voting Stock" means stock of the class or classes having general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers, trustees or individuals performing similar functions of a
Person (irrespective of whether or not at the time stock of any other class or
classes shall have or might have voting power by reason of the happening of any
contingency).
DESCRIPTION OF CAPITAL STOCK
COMMON STOCK
The Amended and Restated Certificate of Incorporation of the Company
authorizes 300,000,000 shares of Common Stock, par value $0.01 per share. The
holders of Common Stock are entitled to one vote for each share held by them on
all matters submitted for approval by the stockholders of the Company. The
holders of Common Stock do not have cumulative voting rights in the election of
directors. The holders of Common Stock are entitled to receive and to share
equally in dividends as may be declared from time to time by the Board of
Directors out of funds legally available therefor. In the event of liquidation,
dissolution or winding up of the Company, the holders of Common Stock are
entitled to receive, after payment of all its debts and liabilities and other
payments to holders of any Preferred Stock having priority rights, if any, all
of the assets of the Company available for distribution to the holders of Common
Stock. The Common Stock has no preemptive rights, conversion rights or other
subscription rights.
The transfer agent and registrar for the Common Stock is The Bank of New
York.
PREFERRED STOCK
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The Amended and Restated Certificate of Incorporation of the Company
authorizes 20,000,000 shares of Preferred Stock, par value $0.01 per share. No
shares of Preferred Stock are outstanding as of the date of this Registration
Statement. The Board of Directors has the authority to issue, without any
stockholder action, the Preferred Stock in one or more series and to fix the
voting powers and the preferences and relative, participating, optional and
other special rights of each such series and the qualifications, limitations and
restrictions thereof, if any, in each case which may differ from those of any
and all other series at any time outstanding.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby through agents,
underwriters, dealers or remarketing firms.
Offers to purchase Securities may be solicited by agents designated by the
Company from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the offer
or sale of the Securities in respect of which this Prospectus is delivered will
be named, and any commissions payable by the Company to such agent will be set
forth, in a Prospectus Supplement. Any such agent will be acting on a reasonable
efforts basis for the period of its appointment or, if indicated in the
applicable Prospectus Supplement, on a firm commitment basis. Agents may be
entitled under agreements which may be entered into with the Company to
indemnification by the Company against certain civil liabilities, including
liabilities under the Securities Act, and may be customers of, engage in
transactions with or perform services for the Company in the ordinary course of
business.
If any underwriters are utilized in any sale of the Securities in respect
of which this Prospectus is delivered, the Company will enter into an
underwriting agreement with such underwriters at the time of sale to them and
the names of the underwriters and the terms of the transaction will be set forth
in the Prospectus Supplement, which will be used by the underwriters to make
resales of the Securities in respect of which this Prospectus is delivered to
the public. The underwriters may be entitled, under the relevant underwriting
agreement, to indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act, and may be customers of, engage
in transactions with or perform services for the Company in the ordinary course
of business.
If a dealer is utilized in any sale of the Securities in respect of which
the Prospectus is delivered, the Company will sell such Securities to the
dealer, as principal. The dealer may then resell such Securities to the public
at varying prices to be determined by such dealer at the time of resale. Dealers
may be entitled to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for the Company in
the ordinary course of business.
Securities may also be offered and sold, if so indicated in the Prospectus
Supplement, in connection with a remarketing upon their purchase, in accordance
with their terms, by one or more firms ("remarketing firms"), acting as
principals for their own accounts or as agents for the Company. Any remarketing
firm will be identified and the terms of its agreement, if any, with the Company
and its compensation will be described in the Prospectus Supplement. Remarketing
firms may be entitled under agreements which may be entered into with the
Company to indemnification by the Company, against certain civil liabilities,
including liabilities under the Securities Act, and may be customers of, engage
in transactions with or perform services for the Company in the ordinary course
of business.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by certain
purchasers to purchase Debt Securities from the Company, at the public offering
price set forth in the Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
Such contracts will be subject to only those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such offers.
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LEGAL MATTERS
The validity of the Securities offered hereby has been passed upon for the
Company by Weil, Gotshal & Manges LLP, New York, New York. Certain legal matters
in connection with offerings made by this Prospectus may be passed upon for any
underwriters, dealers or agents by counsel named in the applicable Prospectus
Supplement.
EXPERTS
The consolidated financial statements and schedules of the Company and Old
ISP for the year ended December 31, 1997, incorporated by reference herein, have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto, and are incorporated by
reference in reliance upon the authority of said firm as experts in giving said
reports.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Expenses in connection with the issuance and distribution of the
securities being registered are estimated (other than with respect to the SEC
registration fee) to be as follows:
SEC registration fee ......................... $295,000
*Trustee's expenses .........................
*Accounting fees and expenses ...............
*Legal fees and expenses ....................
*Miscellaneous................................
--------
*Total..................................... $
- ----------------
*To be provided by amendment
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
International Specialty Products Inc. (the "Registrant") is a Delaware
corporation. Subsection (b)(7) of Section 102 of the Delaware General
Corporation Law (the "DGCL") enables a corporation in its original certificate
of incorporation or an amendment thereto to eliminate or limit the personal
liability of a director to the corporation or its stockholders for monetary
damages for violations of the director's fiduciary duty, except (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the
DGCL (providing for liability of directors for unlawful payment of dividends or
unlawful stock purchases or redemptions) or (iv) for any transaction from which
a director derived an improper personal benefit. Article Seventh of the Amended
and Restated Certificate of Incorporation of the Registrant provides that
directors and officers of the Registrant shall not be personally liable to the
corporation or its stockholders for monetary damages if a director or officer
acts in good faith and in a manner he reasonably believes to be in or not
opposed to the best interests of the Registrant and provides for indemnification
of the officers and directors of the Registrant to the full extent permitted by
applicable law.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director or officer of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding provided that such
director or officer acted in good faith in a manner reasonably believed to be
in, or not opposed to, the best interests of the corporation, and, with respect
to any criminal action or proceeding, provided further that such director or
officer has no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including attorneys' fees)
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<PAGE>
actually and reasonably incurred in connection with the defense or settlement of
such action or suit provided that such director or officer acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the corporation, except that no indemnification may be made in
respect of any claim, issue or matter as to which such director or officer shall
have been adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that despite the adjudication of liability but
in view of all of the circumstances of the case, such director or officer is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 145 further provides that (i) to the extent a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith; and (ii) indemnification and advancement of expenses
provided for, by, or granted pursuant to, Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled. In
addition, Section 145 empowers the corporation to purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him or
incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liabilities under Section 145.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
Exhibit Number Exhibit Description
- -------------- -------------------
**1.1 Form of Common Stock Purchase Agreement.
**1.2 Form of Debt Securities Purchase Agreement.
**4.1 Form of Indenture to be entered between the Company and a trustee
to be named.
**5 Opinion of Weil, Gotshal & Manges LLP.
**12 Statement regarding computation of ratio of earnings to fixed
charges.
*23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Weil, Gotshal & Manges LLP (to be included in the
Opinion filed as Exhibit 5)
24 Power of Attorney (included on signature page to Registration
Statement).
- -------------------------
* Filed herewith.
** To be filed by amendment.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement; notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of a prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
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<PAGE>
Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
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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, to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Township of Wayne, State of New Jersey, on July 22,
1998.
INTERNATIONAL SPECIALTY PRODUCTS INC.
By: /s/ James P. Rogers
-----------------------------------------
Name: James P. Rogers
Title: Executive Vice President-Finance
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose name appears below
hereby constitutes James P. Rogers such person's true and lawful attorney, with
full power of substitution to sign for such person and in such person's name and
capacity indicated below, any and all amendments to this Registration Statement,
including Post-Effective Amendments, and to file the same with the Securities
and Exchange Commission, hereby ratifying and confirming such person's signature
as it may be signed by said attorney to any and all amendments.
Signature Title Date
- --------- ----- ----
/s/ Samuel J. Heyman Chairman, Chief Executive July 22, 1998
- ------------------------- Officer and Director
Samuel J. Heyman (Principal Executive Officer)
/s/ Peter R. Heinze President, Chief Operating July 22, 1998
- ------------------------- Officer and Director
Peter R. Heinze
/s/ Randall R. Lay Vice President and Chief July 22, 1998
- ------------------------- Financial Officer
Randall R. Lay (Principal Financial and
Accounting Officer)
Director July __, 1998
- -------------------------
Charles M. Diker
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/s/ Carl R. Eckardt Executive Vice President- July 22, 1998
- ------------------------- Corporate Development and
Carl R. Eckardt Director
Director July __, 1998
- -------------------------
Harrison J. Goldin
/s/ Sanford Kaplan Director July 22, 1998
- -------------------------
Sanford Kaplan
/s/ Burt C. Manning Director July 22, 1998
- -------------------------
Burt C. Manning
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<PAGE>
EXHIBIT INDEX
Exhibit Number Exhibit Description
- -------------- -------------------
**1.1
Form of Common Stock Purchase Agreement.
**1.2 Form of Debt Securities Purchase Agreement.
**4.1 Form of Indenture to be entered between the Company and a
trustee to be named.
**5.1 Opinion of Weil, Gotshal & Manges LLP.
**12.1 Statement regarding computation of ratio of earnings to
fixed charges.
*23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Weil, Gotshal & Manges LLP (to be included in the
Opinion filed as Exhibit 5)
24 Power of Attorney (included on signature page to
Registration Statement).
- ---------------------
* Filed herewith.
** To be filed by amendment.
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 23, 1998
included in International Specialty Products Inc.'s and ISP Holdings Inc.'s Form
10-K for the year ended December 31, 1997 and all references to our firm
included in this registration statement.
ARTHUR ANDERSEN LLP
Roseland, New Jersey
July 22, 1998
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