<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 2, 1998
REGISTRATION NO. 333-49777
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------------
MERITOR AUTOMOTIVE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 38-3354643
(STATE OF OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
</TABLE>
------------------------
2135 West Maple Road
Troy, Michigan 48084-7186
(248) 435-1000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
DAVID W. GREENFIELD, ESQ.
Senior Vice President,
General Counsel and Secretary
Meritor Automotive, Inc.
2135 West Maple Road
Troy, Michigan 48084-7186
(248) 435-7708
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
It is also respectfully requested that the Commission send copies of all
notices, orders and communications to:
<TABLE>
<S> <C>
PETER R. KOLYER, ESQ. MORTON A. PIERCE, ESQ.
Chadbourne & Parke LLP Dewey Ballantine LLP
30 Rockefeller Plaza 1301 Avenue of the Americas
New York, New York 10112 New York, New York 10019-6092
(212) 408-5100 (212) 259-8000
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: At any time and
from time to time after this Registration Statement becomes effective.
------------------------
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
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 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. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE> 2
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 JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL
PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH
JURISDICTION.
SUBJECT TO COMPLETION, DATED JUNE 2, 1998
PROSPECTUS
MERITOR AUTOMOTIVE, INC.
DEBT SECURITIES
------------------------
Meritor Automotive, Inc., a Delaware corporation (the "Company"), may offer
its debt securities ("Debt Securities"), in one or more series from time to
time, in an aggregate principal amount (or, in the case of Debt Securities
issued at an original issue discount, net proceeds) not to exceed $500,000,000,
or the equivalent of that amount in one or more foreign or composite currencies,
on terms to be determined at the time of sale. This Prospectus will be
supplemented by a prospectus supplement (the "Prospectus Supplement") that will
set forth, as applicable, the specific designation, aggregate principal amount,
authorized denominations, purchase price, maturity, interest rate (or manner of
calculation of interest rate) and time of payment of interest, if any, any
redemption terms, the currency or composite currency in which the Debt
Securities or any interest on the Debt Securities will be payable, and other
specific terms, and any listing on a securities exchange, of the series of Debt
Securities in respect of which this Prospectus is being delivered (the "Offered
Debt Securities"), together with the terms of offering of the Offered Debt
Securities.
------------------------
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 Company may sell the Debt Securities through underwriters, dealers or
agents designated from time to time, or directly to one or more purchasers. See
"Plan of Distribution". The Prospectus Supplement will set forth the names of
any underwriters, dealers or agents involved in the sale of the Offered Debt
Securities, any applicable commissions or discounts and the net proceeds to the
Company from any such sale.
------------------------
THE DATE OF THIS PROSPECTUS IS , 1998.
<PAGE> 3
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 "SEC"). This Prospectus contains
information concerning the Company, but does not contain all of the information
set forth in the Registration Statement of which this Prospectus is a part, and
exhibits and amendments to the Registration Statement that the Company has filed
or may file with the SEC under the Securities Act of 1933, as amended (the
"Securities Act"). Such reports, proxy statements, Registration Statement,
exhibits and other information filed by the Company can be inspected and copied
at the public reference facilities maintained by the SEC at 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549; 7 World Trade Center, Suite 1300, New
York, New York 10048; and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such material can also be obtained at prescribed rates from the
Public Reference Section of the SEC at its principal office at 450 Fifth Street,
N.W., Washington, D.C. 20549. The SEC also maintains a web site that contains
reports, proxy and information statements and other information regarding
registrants (including the Company) that file electronically with the SEC
(http://www.sec.gov).
The Company's Common Stock, par value $1 per share, is listed on the New
York Stock Exchange. Reports, proxy statements and other information concerning
the Company can be inspected at the office of the New York Stock Exchange at 20
Broad Street, New York, New York 10005.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents, or portions of documents, filed with the SEC
pursuant to the Exchange Act (File No. 1-13093), are incorporated in this
Prospectus by reference and made a part hereof:
(a) the Company's Annual Report on Form 10-K for the Fiscal Year Ended
September 30, 1997 (including the portions of the Company's 1997 Annual
Report to Shareowners and the Company's Proxy Statement on Schedule 14A for
the Company's 1998 Annual Meeting of Shareowners that are incorporated
therein by reference);
(b) the Company's Quarterly Report on Form 10-Q for the Quarterly
Period Ended December 31, 1997; and
(c) the Company's Quarterly Report on Form 10-Q for the Quarterly
Period Ended March 31, 1998.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Debt Securities hereunder shall be deemed
to be incorporated by reference in this Prospectus and to be a part hereof from
the date of the filing of such documents (such documents, and the documents
listed above, being referred to as the "Incorporated Documents"). Any statement
contained herein or in an Incorporated Document shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed Incorporated Document, or in an
accompanying Prospectus Supplement, modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company undertakes to provide without charge to each person, including
any beneficial owner, 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 Incorporated
Documents, other than exhibits to such documents, unless such exhibits are
specifically incorporated by reference therein. Requests should be directed to
David W. Greenfield, Senior Vice President, General Counsel and Secretary,
Meritor Automotive, Inc., 2135 West Maple Road, Troy, Michigan, 48084, telephone
number (248) 435-7708.
2
<PAGE> 4
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE DEBT SECURITIES,
INCLUDING OVER-ALLOTMENT, STABILIZING AND SHORT-COVERING TRANSACTIONS IN SUCH
SECURITIES, AND THE IMPOSITION OF A PENALTY BID IN CONNECTION WITH THE OFFERING.
FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "PLAN OF DISTRIBUTION".
THE COMPANY
The Company is a leading global supplier of a broad range of components and
systems for use in commercial, specialty and light vehicles and serves its
customers worldwide through Heavy Vehicle Systems ("HVS") and Light Vehicle
Systems ("LVS"). HVS supplies drivetrain systems and components, including
axles, brakes, transmissions, clutches and drivelines, for heavy-duty and
medium-duty trucks, trailers, off-highway equipment, buses and coaches, as well
as other specialty and military vehicles. LVS supplies electromechanical and
other components and systems, including roof, door, access control and seat
adjusting systems, as well as suspension products and steel wheels, for
passenger cars, light trucks and sport utility vehicles.
The Company was incorporated in Delaware in May 1997 in connection with the
September 30, 1997 distribution by Rockwell International Corporation
("Rockwell"), the Company's former parent company, to Rockwell shareowners on a
pro rata basis of all of the issued and outstanding shares of the Company (the
"Distribution"). Prior to the Distribution, Rockwell transferred substantially
all of its operations, assets and liabilities related to the automotive
businesses then owned and operated by Rockwell (including liabilities relating
to former operations) to the Company or to subsidiaries of the Company.
The Company's principal executive offices are located at 2135 West Maple
Road, Troy, Michigan 48084. Its telephone number is (248) 435-1000.
USE OF PROCEEDS
Except as may otherwise be set forth in a Prospectus Supplement, the net
proceeds to be received by the Company from the issuance and sale of the Debt
Securities will be added to the Company's general funds which will be available
for general corporate purposes, including the repayment of existing
indebtedness, working capital needs, capital expenditures and acquisitions.
Pending application of the funds, the Company will use the net proceeds of the
Debt Securities for short-term investments.
RATIO OF EARNINGS TO FIXED CHARGES
The Company has calculated ratios of earnings to fixed charges for the
periods indicated, as follows:
<TABLE>
<CAPTION>
SIX
PRO FORMA MONTHS
YEAR ENDED SEPTEMBER 30,(1) YEAR ENDED ENDED
------------------------------------- SEPTEMBER 30, MARCH 31,
1993 1994 1995 1996 1997 1997 (2) 1998
----- ----- ----- ----- ----- ------------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges(3).......................... 6.8 5.6 10.3 11.7 11.7 4.7 6.1
</TABLE>
- ---------------
(1) The financial information presented for periods prior to September 30, 1997
has been prepared based on the combined historical financial position,
results of operations and cash flows of the ongoing automotive businesses of
Rockwell prior to the Distribution and is not necessarily indicative of what
the financial position, results of operations or cash flows would have been
had the Company been an independent public company during the periods
presented.
(2) Pro forma financial information presented as if the Company was a
stand-alone entity in fiscal 1997. Pro forma information reflects (a) the
68.9 million shares of the Company's common stock issued on the date of the
Distribution, (b) management's estimate that corporate costs would have been
$11 million lower on a stand-alone basis than those allocated to the
automotive businesses by Rockwell and (c) $28 million of interest expense at
6 percent for the year ended September 30, 1997, related to the debt
incurred by the Company in connection with the $445 million pre-Distribution
payment to Rockwell.
(3) "Earnings" are defined as pre-tax income from continuing operations,
adjusted for income or loss attributable to minority interests in
subsidiaries, undistributed earnings of less than majority owned
subsidiaries, and fixed charges excluding capitalized interest. "Fixed
charges" are defined as interest on borrowings (whether expensed or
capitalized) and that portion of rental expense applicable to interest.
3
<PAGE> 5
DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities are to be issued under an Indenture, dated as of April
1, 1998 (the "Indenture"), between the Company and The Chase Manhattan Bank, as
trustee (the "Trustee"). The Indenture is filed as an exhibit to the
Registration Statement, and copies of the Indenture may be obtained from the
Commission in the manner set forth above under "Available Information". Certain
provisions of the Indenture are summarized below. Such summaries are subject to,
and are qualified by reference to, all provisions of the Indenture, including
the definitions therein of certain terms. Numerical references in parentheses
below are to sections of the Indenture. Whenever particular provisions or
sections of the Indenture or terms defined in the Indenture are referred to in
this Prospectus, such provisions, sections or definitions are incorporated by
reference as a part of the statements made, and the statements are qualified by
such reference. Unless otherwise indicated, capitalized terms used in this
section that are defined in the Indenture have the meanings ascribed to such
terms in the Indenture.
The description below sets forth certain general terms and provisions of
the Debt Securities. The specific terms of the Offered Debt Securities, as well
as any modifications of or additions to the general terms of the Debt Securities
set forth below that may be applicable in the case of the Offered Debt
Securities, are described in the Prospectus Supplement. For a description of the
terms of the Offered Debt Securities, reference must be made to both the
Prospectus Supplement and the description of the Debt Securities in this
Prospectus.
GENERAL
The Indenture does not limit the amount of Debt Securities which may be
issued thereunder and provides that Debt Securities may be issued thereunder up
to the aggregate principal amount which may be authorized from time to time by
the Company, in one or more series. Under the Indenture, the Company has the
ability to issue Debt Securities with terms different from those of Debt
Securities previously issued thereunder, and without the consent of the holders
thereof, to issue additional amounts of a series of Debt Securities (with
different dates for payments, different rates of interest and in a different
Currency or Currencies). Reference is made to the Prospectus Supplement for the
following terms of the Offered Debt Securities, as applicable: (1) the title of
the Offered Debt Securities; (2) any limit on the aggregate principal amount of
the Offered Debt Securities and any limit on the aggregate principal amount of
Debt Securities of such series; (3) if other than Dollars, the Currency or
Currencies in which the Offered Debt Securities are to be denominated, the
manner in which the Dollar equivalent of the principal amount is to be
determined upon original issuance and if any payment of principal of (or
premium, if any) or interest, if any, on or any other amount in respect of the
Offered Debt Securities will be payable other than in Dollars, the Currency or
Currencies in which such payment shall be payable; (4) the date or dates, or the
method by which such date or dates will be determined or extended, on which the
principal of (and premium, if any, on) the Offered Debt Securities will be
payable; (5) the rate or rates, or the method of determination thereof, at which
the Offered Debt Securities shall bear interest, if any, the date or dates from
which such interest shall accrue or the method by which such date or dates shall
be determined, the date or dates on which such interest shall be payable and for
any Registered Securities the Regular Record Dates, if any, for such interest
payment dates, or the method by which such date or dates shall be determined,
and the basis on which any interest shall be calculated if other than on the
basis of a 360-day year of twelve 30-day months; (6) the place or places where
principal of (and premium, if any) and interest, if any, on the Offered Debt
Securities may be payable, where any Registered Securities may be surrendered
for registration of transfer and where Offered Debt Securities may be exchanged
and notices and demands may be served or published; (7) the period or periods
within which, the price or prices at which, the Foreign Currency or Foreign
Currencies, if any, in which and the other terms and conditions upon which the
Offered Debt Securities may be redeemed, in whole or in part, at the option of
the Company; (8) the obligation, if any, of the Company to redeem or purchase
the Offered Debt Securities pursuant to any sinking fund or analogous provisions
or at the option of a holder thereof, and the period or periods within which,
the price or prices at which, the Foreign Currency or Foreign Currencies, if
any, in which, and the other terms and conditions upon which Offered Debt
Securities shall be redeemed or purchased, in whole or in part, pursuant to such
obligation; (9) the denomination of any Registered Security (if other than
$1,000 or any integral
4
<PAGE> 6
multiple thereof) and of any Bearer Security (if other than $10,000 or any
integral multiple thereof); (10) the portion of the principal amount of the
Offered Debt Securities, if other than the principal amount thereof, payable
upon acceleration of Maturity thereof or the method by which such portion shall
be determined; (11) whether Offered Debt Securities are to be Registered
Securities, Bearer Securities or both, are to be issuable with or without
coupons or both, and the terms upon which Bearer Securities may be exchanged for
Registered Securities, if other than in the manner provided in the Indenture,
and, in the case of Bearer Securities, the date as of which such Bearer
Securities shall be dated (if other than the date of original issuance of the
first security of like tenor and term to be issued); (12) whether Offered Debt
Securities are to be issued in whole or in part in the form of a Global
Security, and in such case the Depositary, whether such global form is temporary
or permanent, whether beneficial owners of interests in any Permanent Global
Security may exchange such interests for Debt Securities of such series in
certificated form and of like tenor of any authorized form and denomination and
the circumstances under which any such exchanges may occur, if other than in the
manner provided in the Indenture, and any applicable Exchange Date; (13) whether
any additional amounts will be payable by the Company on the Offered Debt
Securities in respect of any tax, assessment or governmental charge and whether
the Company will have the option to redeem the Offered Debt Securities rather
than pay such additional amounts or to redeem the Offered Debt Securities in the
event of the imposition of any certification, documentation, information or
other reporting requirement (and the terms and conditions of any such option);
(14) if the amount of payments of principal of (and premium, if any) or
interest, if any, on the Offered Debt Securities may be determined with
reference to an index, the manner in which such amounts shall be determined;
(15) the person to whom any interest on any Registered Security shall be
payable, if other than the person in whose name such Registered Security (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date, the manner in which, or person to whom, any interest on any
Bearer Security will be payable, if other than upon presentation and surrender
of the coupons appertaining thereto as they mature, and the extent to which any
interest payable on an Interest Payment Date on any temporary Global Security
will be paid if other than in the manner provided in the Indenture; (16) any
additions to or changes in any Events of Default or covenants applicable to the
Offered Debt Securities set forth in the Indenture; (17) the application, if
any, of the defeasance or covenant defeasance provisions of the Indenture to the
Offered Debt Securities; (18) the designation of the initial Exchange Rate
Agent, if applicable; (19) if other than the Trustee, the identity of the
trustee, Authenticating Agent, Security Registrar and/or Paying Agent; and (20)
any other terms of the Offered Debt Securities. (Section 3.01).
Additional provisions of the Indenture, such as interest rate reset and
extension provisions, may be made applicable to the Offered Debt Securities, as
described in the Prospectus Supplement.
If any series of Debt Securities is sold for, is payable in or is
denominated in one or more Foreign Currencies, applicable restrictions,
elections, tax consequences, specific terms and other information with respect
to such series of Debt Securities and such Foreign Currency or Foreign
Currencies shall be set forth in the Prospectus Supplement relating thereto.
If the Debt Securities are being issued as original issue discount
securities (bearing no interest or interest at a rate which at the time of
issuance is below market rates) to be sold at a substantial discount below the
stated principal amount, the United States federal income tax consequences and
other considerations applicable to such original issue discount securities will
be described in the related Prospectus Supplement.
The Debt Securities will be unsecured and will rank on a parity with all
other unsecured and unsubordinated indebtedness of the Company, unless otherwise
indicated in the applicable Prospectus Supplement. Other than the protections
which may otherwise be afforded holders of Debt Securities as a result of the
operation of the covenants described under "Covenants" below or as may be made
applicable to the Offered Debt Securities as described in the Prospectus
Supplement, there are no covenants or other provisions which may afford holders
of Debt Securities protection in the event of a leveraged buyout or other highly
leveraged transaction involving the Company or any similar occurrence.
5
<PAGE> 7
FORM, DENOMINATIONS, REGISTRATION, TRANSFER AND EXCHANGE
Debt Securities of a series may be issuable solely as Registered
Securities, solely as Bearer Securities or as both Registered Securities and
Bearer Securities. Unless otherwise provided in the applicable Prospectus
Supplement, Registered Securities denominated in Dollars (other than Registered
Securities in global form, which may be in any denomination) are issuable in
denominations of $1,000 and any integral multiple thereof and Bearer Securities
denominated in Dollars (other than Bearer Securities in global form, which may
be in any denomination) are issuable in denominations of $10,000 and any
integral multiple thereof. The Indenture provides that Debt Securities of a
series may be issuable in global form. See "Global Securities" below. Unless
otherwise indicated in the applicable Prospectus Supplement, Bearer Securities
(other than Global Securities) will have interest coupons attached. (Sections
2.01 and 3.02).
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of any authorized denominations, of
like aggregate principal amount, tenor and terms. In addition, if Debt
Securities of any series are issuable as both Registered Securities and Bearer
Securities, at the option of the holder, but subject to applicable laws, upon
request confirmed in writing and subject to the terms of the Indenture, Bearer
Securities (with all unmatured coupons, except as provided below, and all
matured coupons in default) of such series will be exchangeable into Registered
Securities of the same series of any authorized denominations and of like
aggregate principal amount, tenor and terms. Bearer Securities surrendered in
exchange for Registered Securities of the same series between the close of
business on a Regular Record Date or a Special Record Date and the relevant date
for payment of interest shall be surrendered without the coupon relating to such
date for payment of interest, and such interest will not be payable in respect
of the Registered Security issued in exchange for such Bearer Security, but will
be payable only to the holder of such coupon when due in accordance with the
terms of the Indenture. Unless otherwise specified in the applicable Prospectus
Supplement, Bearer Securities will not be issued in exchange for Registered
Securities. (Section 3.05).
In connection with its original issuance, no Bearer Security shall be
mailed or otherwise delivered to any location in the United States (as defined
below under "Limitations on Issuance of Bearer Securities") and, unless
otherwise specified in the applicable Prospectus Supplement, a Bearer Security
may be delivered in connection with its original issuance only if the person
entitled to receive such Bearer Security furnishes written certification, in the
form required by the Indenture.
Debt Securities may be presented for exchange as provided above, and
Registered Securities may be presented for registration of transfer (duly
endorsed or accompanied by a satisfactory written instrument of transfer), at
the office of the Security Registrar or at the office of any transfer agent
designated by the Company for such purpose with respect to such series of Debt
Securities, without service charge and upon payment of any taxes and other
governmental charges. (Section 3.05). If the Prospectus Supplement refers to any
transfer agent (in addition to the Security Registrar) initially designated by
the Company with respect to any series of Debt Securities, the Company may at
any time rescind the designation of any such transfer agent or approve a change
in the location through which any such transfer agent (or Security Registrar)
acts, except that, if Debt Securities of a series are issuable as Registered
Securities, the Company will be required to maintain a transfer agent in each
Place of Payment for such series and, if Debt Securities of a series are
issuable as Bearer Securities, the Company will be required to maintain (in
addition to the Security Registrar) a transfer agent in a Place of Payment for
such series located outside the United States. The Company may at any time
designate additional transfer agents with respect to any series of Debt
Securities. (Section 10.02).
In the event of any redemption, the Company shall not be required to (i)
issue, register the transfer of or exchange Debt Securities of any series during
a period of 15 days before any selection of Debt Securities of that series to be
redeemed and ending at the close of business on (A) if Debt Securities of the
series are issuable only as Registered Securities, the day of mailing of the
relevant notice of redemption and (B) if Debt Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Debt Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption; (ii) register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except the unredeemed
portion of any
6
<PAGE> 8
Registered Security being redeemed in part; or (iii) exchange any Bearer
Security selected for redemption except that such a Bearer Security may be
exchanged for a Registered Security of like tenor and terms of that series,
provided that such Registered Security shall be simultaneously surrendered for
redemption. (Section 3.05).
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a Depositary identified in the Prospectus Supplement relating to such series
and registered in the name of the Depositary or the Depositary's nominee. Global
Securities may be issued in fully registered or bearer form and may be issued in
either temporary or permanent form.
The Company anticipates that the following provisions will generally apply
to depository arrangements. The specific terms of the depository arrangement
with respect to a series of Debt Securities and whether all or any part of the
Offered Debt Securities will be issued in the form of one or more Global
Securities will be described in the Prospectus Supplement relating to such
series.
Unless and until it is exchanged in whole or in part for the individual
Debt Securities represented thereby, a Global Security may not be transferred
except as a whole between the Depositary for such Global Security and its
nominee or by the Depositary or any nominee to a successor of the Depositary or
a nominee of such successor.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit on its book-entry registration and transfer
system the respective principal amounts of the individual Debt Securities
represented by such Global Security to the accounts of persons that have
accounts with such Depositary ("Participants"). Such accounts shall be
designated by the underwriters, dealers or agents with respect to such Debt
Securities or by the Company if such Debt Securities are offered and sold
directly by the Company. Ownership of beneficial interests in a Global Security
will be limited to Participants or persons that may hold interests through
Participants. Ownership of beneficial interests in such Global Security will be
shown on, and the transfer of that ownership will be effected only through,
records maintained by the applicable Depositary or its nominee (with respect to
interests of Participants) and records of Participants (with respect to
interests of persons who hold through Participants). The laws of some states
require that certain purchasers of securities take physical delivery of
securities in definitive form. Such limits and such laws may impair the ability
to own, pledge or transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security or its nominee is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Except as provided below, owners of beneficial interests in a Global
Security will not be entitled to have any of the individual Debt Securities of
the series represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of any such Debt
Securities of such series in definitive form and will not be considered the
owners or holders thereof under the Indenture.
Payments of principal of (and premium, if any) and interest, if any, on
individual Debt Securities represented by a Global Security registered in the
name of a Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security
representing such Debt Securities. None of the Company, the Trustee, any Paying
Agent or the Security Registrar for such Debt Securities or any agent,
underwriter or dealer through which such Debt Securities are offered or sold
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in the Global
Security for such Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Company expects that the Depositary for a series of Debt Securities or
its nominee, upon receipt of any payment of principal (or premium, if any) or
interest, if any, in respect of a permanent Global Security representing any of
such Debt Securities, immediately will credit Participants' accounts with
payments in
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amounts proportionate to their respective beneficial interests in the principal
amount of such Global Security for such Debt Securities as shown on the records
of such Depositary or its nominee. The Company also expects that payments by
Participants to owners of beneficial interests in such Global Security held
through such Participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name". Such payments will be
the responsibility of such Participants.
If a Depositary for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as depository and a successor depository is not
appointed by the Company within 90 days, the Company will issue individual Debt
Securities of such series to Participants in exchange for the Global Security
representing such series of Debt Securities. In addition, the Company may, at
any time and in its sole discretion, subject to any limitations described in the
Prospectus Supplement relating to such Debt Securities, determine not to have
any Debt Securities of such series represented by one or more Global Securities
and, in such event, will issue individual Debt Securities of such series to
Participants in exchange for the Global Security or Securities representing such
series of Debt Securities. (Section 3.05).
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
Unless otherwise provided in the applicable Prospectus Supplement, in
compliance with United States federal tax laws and regulations, Bearer
Securities (including Debt Securities in global form) may not be offered, sold,
resold or delivered in connection with their original issuance in the United
States or to United States persons (each as defined below) other than to a
Qualifying Branch of a United States Financial Institution (as defined below) or
a United States person acquiring Bearer Securities through a Qualifying Branch
of a United States Financial Institution and any underwriters, agents and
dealers participating in the offering of Debt Securities must agree that they
will not offer any Bearer Securities for sale or resale in the United States or
to United States persons (other than a Qualifying Branch of a United States
Financial Institution or a United States person acquiring Bearer Securities
through a Qualifying Branch of a United States Financial Institution) or deliver
Bearer Securities within the United States. In addition, any such underwriters,
agents and dealers must agree to send confirmations to each purchaser of a
Bearer Security confirming that such purchaser represents that it is not a
United States person or is a Qualifying Branch of a United States Financial
Institution and, if such person is a dealer, that it will send similar
confirmations to purchasers from it. The term "Qualifying Branch of a United
States Financial Institution" means a branch located outside the United States
of a United States securities clearing organization, bank or other financial
institution listed under Treasury Regulation Section 1.165-12(c)(1)(v) that
agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the United States Internal Revenue Code of 1986, as amended (the "Code"), and
the regulations thereunder.
Bearer Securities and any coupons appertaining thereto will bear a legend
substantially to the following effect: "Any United States person who holds this
obligation will be subject to limitations under the United States income tax
laws, including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code." Under Sections 165(j) and 1287(a) of the Code, holders
that are United States persons, with certain exceptions, will not be entitled to
deduct any loss on Bearer Securities and must treat as ordinary income any gain
realized on the sale or other disposition (including the receipt of principal)
of Bearer Securities.
The term "United States person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States or of any political subdivision thereof or
therein (other than a partnership that is not treated as a United States person
under any applicable Treasury Regulation which may be issued), and an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source, and the term "United States" means the United States
of America (including the states and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
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PAYMENT AND PAYING AGENTS
Unless otherwise provided in the applicable Prospectus Supplement, the
Place of Payment for a series of Debt Securities issuable solely as Registered
Securities will be New York, New York and the Company has initially designated
an office of the Trustee in New York, New York for this purpose. Notwithstanding
the foregoing, at the option of the Company, interest, if any, may be paid on
Registered Securities by (i) check mailed to the address of the person entitled
thereto as such person's address appears in the Security Register or (ii)
transfer to an account located in the United States maintained by the person
entitled thereto as specified in the Security Register. (Sections 3.07, 10.01
and 10.02). Unless otherwise provided in the applicable Prospectus Supplement,
payment of any installment of interest on Registered Securities will be made to
the person in whose name such Registered Security is registered at the close of
business on the Regular Record Date for such interest payment. (Section 3.07).
If Debt Securities of a series are issuable as Bearer Securities, unless
otherwise provided in the applicable Prospectus Supplement, the Company will be
required to maintain an office or agency outside the United States at which,
subject to any applicable laws and regulations, the principal of (and premium,
if any) and interest, if any, on such series will be payable; provided that, if
required in connection with any listing of such Debt Securities on the London
Stock Exchange Limited, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States, the Company will maintain an office
or agency for such Debt Securities in London or Luxembourg or any city located
outside the United States required by such stock exchange. (Section 10.02). The
initial locations of such offices and agencies will be specified in the
applicable Prospectus Supplement. Unless otherwise provided in the applicable
Prospectus Supplement, payment of principal of (and premium, if any) and
interest, if any, on Bearer Securities may be made, at the holder's option, by
(i) check in the Currency designated by the Bearer Security presented or mailed
to an address outside the United States or (ii) transfer to an account in such
Currency maintained by the person entitled thereto with a bank located outside
the United States. (Sections 3.07 and 10.02). Unless otherwise provided in the
applicable Prospectus Supplement, payment of installments of interest on any
Bearer Securities on or before Maturity will be made only against surrender of
coupons for such interest installments as they severally mature. (Section
10.01). Unless otherwise provided in the applicable Prospectus Supplement, no
payment with respect to any Bearer Security will be made at any office or agency
of the Company in the United States or by check mailed to an address in the
United States or by transfer to an account maintained with a bank located in the
United States. Notwithstanding the foregoing, payments of principal of (and
premium, if any) and interest, if any, on Bearer Securities payable in Dollars
may be made at an office of the Company's Paying Agent in the United States if
(but only if) payment of the full amount thereof in Dollars at all offices
outside the United States is illegal or effectively precluded by exchange
controls or other similar restrictions and the Trustee has received an Opinion
of Counsel that such payment within the United States is legal. (Sections 3.07
and 10.02).
The Company may from time to time designate additional offices or agencies
for payment with respect to any Debt Securities, approve a change in the
location of any such office or agency and, except as provided above, rescind the
designation of any such office or agency. (Section 10.02).
Unless otherwise provided in the applicable Prospectus Supplement, all
payments of principal of (and premium, if any) and interest, if any, on any Debt
Security that is payable in a Currency other than Dollars will be made in
Dollars in the event that such Currency (i) ceases to be used both by the
government of the country that issued the Currency and by a central bank or
other public institution of or within the international banking community for
the settlement of transactions, (ii) is the ECU and ceases to be used both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) is any
Currency unit (or composite Currency) other than the ECU and ceases to be used
for the purposes for which it was established. (Section 3.10).
All moneys deposited with the Trustee or any Paying Agent or held for the
payment of principal of (or premium, if any) or interest, if any, on any Debt
Security or any coupon appertaining thereto that remains unclaimed at the end of
two years after such principal, premium or interest shall have become due and
payable
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will, at the request of the Company, be repaid to the Company and the holder of
such Debt Security or any coupon appertaining thereto will thereafter look only
to the Company for payment thereof. (Section 10.03).
CERTAIN DEFINITIONS
"Restricted Subsidiary" means any Subsidiary of the Company other than an
Unrestricted Subsidiary. "Unrestricted Subsidiary" means any Subsidiary
designated as such from time to time by the Company. (Section 1.01). Subject to
various limitations, the Company may from time to time designate any Restricted
Subsidiary as an Unrestricted Subsidiary and any Unrestricted Subsidiary as a
Restricted Subsidiary. (Section 10.07). Unrestricted Subsidiaries will not be
restricted by the various provisions of the Indenture applicable to Restricted
Subsidiaries, and the debt of Unrestricted Subsidiaries will not be consolidated
with that of the Company and its Restricted Subsidiaries in calculating
Consolidated Funded Debt under the Indenture.
"Funded Debt" means (a) indebtedness for money borrowed having a maturity
of more than 12 months, (b) certain obligations in respect of lease rentals and
(c) the higher of the par value or liquidation value of preferred stock of a
Restricted Subsidiary that is not owned by the Company or a Wholly-owned
Restricted Subsidiary, but, in the case of the Company, does not include certain
debt subordinate to the Debt Securities. (Section 1.01).
"Secured Debt" means indebtedness for money borrowed (other than
indebtedness among the Company and Restricted Subsidiaries), which is secured by
a mortgage or other lien on any Principal Property of the Company or a
Restricted Subsidiary or a pledge, lien or other security interest on the stock
or indebtedness of a Restricted Subsidiary. (Section 1.01).
"Principal Property" includes any real property (including buildings and
other improvements) of the Company or any Restricted Subsidiary, owned at the
date of the Indenture or thereafter acquired (other than any pollution control
facility, cogeneration facility or small power production facility acquired
after the date of the Indenture), which (i) has a book value in excess of 2.5%
of Consolidated Net Tangible Assets and (ii) in the opinion of the Board of
Directors is of material importance to the total business conducted by the
Company and its Restricted Subsidiaries as a whole. (Section 1.01).
"Consolidated Net Tangible Assets" means, at any date of computation, the
total amount of consolidated assets of the Company and its consolidated
subsidiaries, less the sum of (a) all current liabilities, except for (i) any
short-term debt, (ii) any current portion of long-term debt and (iii) any
current portion of obligations under capital leases, and (b) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense (less
unamortized debt premium) and other like intangibles as shown on a balance sheet
of the Company and its consolidated subsidiaries prepared not more than 90 days
prior to the date of computation, in all cases computed in accordance with
generally accepted accounting principles. (Section 1.01).
"Sale and Lease-Back Transaction" means, subject to certain exceptions,
sales or transfers of any Principal Property owned by the Company or any
Restricted Subsidiary which has been in full operation for more than 180 days
prior to such sale or transfer, where the Company or such Restricted Subsidiary
has the intention of leasing back such property for more than 36 months but
discontinuing the use of such property on or before the expiration of the term
of such lease. (Section 10.06).
COVENANTS
Limitations on Liens. The Company and its Restricted Subsidiaries are
prohibited from creating, incurring, assuming or suffering to exist any Secured
Debt without equally and ratably securing the outstanding Debt Securities. The
foregoing restrictions are not applicable to (i) Secured Debt existing at the
date of the Indenture; (ii) liens on property acquired or constructed after the
date of the Indenture by the Company or a Restricted Subsidiary and created
contemporaneously with, or within twelve months after, such acquisition or the
completion of such construction to secure all or any part of the purchase price
of such property or the cost of such construction; (iii) mortgages on property
of the Company or a Restricted Subsidiary created within twelve months of
completion of construction of a new plant or plants on such
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property to secure all or part of the cost of such construction; (iv) liens on
property existing at the time such property is acquired; (v) liens on stock
acquired after the date of the Indenture by the Company or a Restricted
Subsidiary if the aggregate cost thereof does not exceed 15% of Consolidated Net
Tangible Assets; (vi) liens securing indebtedness of a successor corporation to
the Company to the extent permitted by the Indenture; (vii) liens securing
indebtedness of a Restricted Subsidiary outstanding at the time it became a
Restricted Subsidiary; (viii) liens securing indebtedness of any person
outstanding at the time it is merged with or substantially all its properties
are acquired by the Company or any Restricted Subsidiary; (ix) liens on property
or on the outstanding shares or indebtedness of a corporation existing at the
time such corporation becomes a Restricted Subsidiary; (x) liens created,
incurred or assumed in connection with an industrial revenue bond, pollution
control bond or similar financing arrangement between the Company or any
Restricted Subsidiary and any Federal, state or municipal government or other
governmental body or agency; (xi) extensions, renewals or replacements of the
foregoing permitted liens to the extent of the original amounts thereof; (xii)
liens in connection with government and certain other contracts; (xiii) certain
liens in connection with taxes or legal proceedings; (xiv) certain other liens
not related to the borrowing of money; and (xv) liens in connection with Sale
and Lease-Back Transactions as described under "Limitations on Sale and
Lease-Back". (Section 10.05).
In addition, the Company and its Restricted Subsidiaries may have Secured
Debt not otherwise permitted without equally and ratably securing the
outstanding Debt Securities if the sum of (a) the amount of such Secured Debt
plus (b) the aggregate value of Sale and Lease-Back Transactions (subject to
certain exceptions) described below, does not exceed 15% of Consolidated Net
Tangible Assets. (Section 10.05).
Limitations on Sale and Lease-Back. The Company and its Restricted
Subsidiaries are prohibited from engaging in Sale and Lease-Back Transactions
unless (a) the Company or its Restricted Subsidiaries would be entitled to incur
Secured Debt equal to the amount realizable upon such sale or transfer secured
by a mortgage on the property to be leased without equally and ratably securing
the outstanding Debt Securities; or (b) an amount equal to the greater of net
proceeds of the sale or fair value of the property sold (subject to certain
limitations contained in the Indenture) as determined by the Board of Directors
is applied within 180 days of any such transaction (i) to the retirement (other
than a mandatory retirement) of Consolidated Funded Debt or indebtedness of the
Company or a Restricted Subsidiary that was Funded Debt at the time it was
created (other than Consolidated Funded Debt or indebtedness owned by the
Company or any Restricted Subsidiary) or (ii) to the purchase of other Principal
Property having a value at least equal to the greater of such amounts; or (c)
the Sale and Lease-Back Transaction involved was an industrial revenue bond,
pollution control bond or similar financing arrangement between the Company or
any Restricted Subsidiary and any Federal, state, municipal government or other
governmental body or agency. (Section 10.06).
Certain Limitations on Merger of the Company. The Company may consolidate
with or merge into any other corporation, or convey or transfer its properties
and assets substantially as an entirety to any other Person, provided that (i)
the corporation formed by such consolidation or into which the Company is merged
or which acquires such assets, is organized under the laws of the United States,
any State thereof or the District of Columbia and expressly assumes in a
supplemental indenture the Company's obligations on the Debt Securities and
under the Indenture, (ii) after giving effect to such transaction no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing and (iii) certain
other conditions are met. (Section 8.01). If, upon any consolidation or merger
of the Company with or into any other corporation or upon any conveyance or
transfer of its properties and assets substantially as an entirety to any other
Person, any Principal Property of the Company or a Restricted Subsidiary would
thereupon become subject to any mortgage, security interest, pledge, lien or
encumbrance not otherwise permitted under the Indenture, the Company will, prior
to such transaction, secure the outstanding Debt Securities, equally and ratably
with any other indebtedness of the Company then entitled to be so secured, by a
direct lien on such Principal Property and certain other properties. (Section
8.03). The successor corporation formed by any consolidation or merger, or any
conveyance or transfer of the properties and assets of the Company substantially
as an entirety, shall succeed to and be substituted for the Company under the
Indenture and thereafter the Company shall be relieved of all obligations and
covenants under the Indenture, the Debt Securities and any coupons. (Section
8.02).
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DEFEASANCE AND COVENANT DEFEASANCE
Defeasance. The Indenture provides as to any series of Debt Securities to
which the provisions described in this paragraph are made applicable, that the
Company will be discharged from any and all obligations in respect of the Debt
Securities of such series (except for certain obligations to register the
transfer and exchange of such Debt Securities, to replace mutilated, destroyed,
lost or stolen Debt Securities, to compensate, reimburse and indemnify the
Trustee, to maintain an office or agency with respect to the Debt Securities and
to hold moneys for payment in trust) upon irrevocable deposit with the Trustee,
in trust, of money or U.S. government securities (as described in the Indenture)
or a combination thereof, which through the payment of interest and principal in
respect thereof in accordance with their terms will provide money in an amount
sufficient to pay (without reinvestment) and discharge (i) the principal of (and
premium, if any) and each installment of principal of (and premium, if any) and
interest, if any, on such Debt Securities on the Stated Maturity of such
principal or installment of principal or interest, if any, and (ii) any
mandatory sinking fund payments or analogous payments applicable to Debt
Securities of such series on the day on which such payments are due and payable
in accordance with the terms of the Indenture and such Debt Securities. Such a
trust may only be established if, among other things, the Company has delivered
to the Trustee an Opinion of Counsel (as specified in the Indenture) to the
effect that the holders of such Debt Securities will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to Federal income tax on the same amount and
in the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred. Such opinion must refer to
or be based upon a ruling of the Internal Revenue Service or a change in
applicable Federal income tax law occurring after the date of the Indenture. In
the event of any such deposit and discharge, the holders of such Debt Securities
would thereafter be entitled to look only to such trust fund for payment of
principal of (and premium, if any) and interest, if any, on the Debt Securities.
(Section 4.03).
Covenant Defeasance. The Indenture provides, as to any series of Debt
Securities to which the provisions described in this paragraph are made
applicable, that (i) the Company may omit to comply with the covenants contained
in Sections 10.05 (Limitations on Liens), 10.06 (Limitations on Sale and Lease-
Back) and 10.07 (Limitations on Change in Subsidiary Status) of the Indenture
and (ii) such noncompliance shall not be deemed to be an Event of Default under
the Indenture and the Debt Securities upon irrevocable deposit with the Trustee,
in trust, of money or U.S. government securities (as described in the Indenture)
or a combination thereof, which through the payment of interest and principal in
respect thereof in accordance with their terms will provide money in an amount
sufficient to pay (without reinvestment) and discharge (x) the principal of (and
premium, if any) and each installment of principal of (and premium, if any) and
interest, if any, on such Debt Securities on the Stated Maturity of such
principal or installment of principal or interest, if any, and (y) any mandatory
sinking fund payments or analogous payments applicable to Debt Securities of
such series on the day on which such payments are due and payable in accordance
with the terms of the Indenture and such Debt Securities. Such a trust may be
established only if, among other things, the Company has delivered to the
Trustee an Opinion of Counsel (as specified in the Indenture) to the effect that
the holders of such Debt Securities will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and defeasance of
certain obligations and will be subject to Federal income tax on the same amount
and in the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred. The obligations of the Company under
the Indenture and Debt Securities other than with respect to the covenants
referred to above and the Events of Default other than the Event of Default
referred to above shall remain in full force and effect. (Section 10.09).
The Prospectus Supplement will state if any defeasance provision will apply
to the Debt Securities.
MODIFICATION OF INDENTURE AND WAIVER OF CERTAIN COVENANTS
With the consent of the holders of at least a majority in principal amount
of the outstanding Debt Securities of each series affected, the Trustee and the
Company may execute a supplemental indenture to change the Indenture or modify
the rights of the holders of Debt Securities of any such series, but, without
the consent of the holder of each outstanding Debt Security so affected, a
supplemental indenture may not, among other things, (i) change (except as
otherwise provided with respect to Debt Securities of any series) the
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Stated Maturity of principal or interest, if any, on any Debt Security, or
reduce the principal amount thereof or the rate of interest, if any, thereon or
any premium payable on redemption, or reduce the amount of principal of an
Original Issure Discount Security that would be due and payable upon a
declaration of acceleration of Maturity pursuant to the Indenture, or change the
Currency in which any Debt Security (or the premium, if any) or the interest, if
any, thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption or repayment, on or after the Redemption Date or
Repayment Date), or (ii) reduce the aforesaid percentage of holders of Debt
Securities of such series whose consent shall be required to authorize any such
supplemental indenture or to waive certain provisions of the Indenture. (Section
9.02).
The holders of a majority in principal amount of the Debt Securities of any
series at the time outstanding may waive compliance by the Company with certain
covenants in the Indenture with respect to Debt Securities of such series.
(Section 10.08).
The Indenture provides that in determining whether the holders of the
requisite principal amount of the Debt Securities of a series then outstanding
have given any request, demand, authorization, direction, notice, consent or
waiver thereunder or whether a quorum is present at a meeting of holders of Debt
Securities, (i) the principal amount of an Original Issue Discount Security that
will be deemed to be outstanding will be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof, (ii) the principal amount of a Security
denominated in one or more Foreign Currencies shall be deemed to be the Dollar
equivalent, determined on the date of original issuance of such Security, of the
principal amount thereof (or, in the case of an Original Issue Discount Security
or Indexed Security, the Dollar equivalent on the original issuance date of such
Security of the principal amount determined as provided in (i) above or (iii)
below), (iii) the principal amount of any Indexed Security that will be deemed
outstanding will be equal to the principal face amount of such Indexed Security
at original issuance unless otherwise provided with respect to such Security
pursuant to the Indenture, and (iv) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such obligor
will be disregarded and deemed not to be outstanding. (Section 1.01).
The Indenture contains provisions for convening meetings of the holders of
Debt Securities of a series if Debt Securities of that series are issuable as
Bearer Securities. (Section 13.01). A meeting may be called at any time by the
Trustee for such Debt Securities, and also, upon request, by the Company or the
holders of at least 10% in principal amount of the outstanding Debt Securities
of such series, in any such case upon notice given as provided in the Indenture.
(Section 13.02). Except for any consent that must be given by the holder of each
Debt Security affected thereby, as described above, any resolution presented at
a meeting or adjourned meeting duly reconvened at which a quorum is present may
be adopted by the affirmative vote of the holders of a majority in principal
amount of the outstanding Debt Securities of that series; provided, however,
that any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action that may be made, given or
taken by the holders of a specified percentage in principal amount of Debt
Securities of a series may be adopted at a meeting or adjourned meeting duly
reconvened at which a quorum is present by the affirmative vote of the holders
of such specified percentage in principal amount of the outstanding Debt
Securities of that series. Any resolution passed or decision taken at any
meeting of holders of Debt Securities of any series duly held in accordance with
the Indenture will be binding on all holders of Debt Securities of that series.
The quorum at any meeting called to adopt a resolution, and at any reconvened
meeting, will be persons holding or representing a majority in principal amount
of the outstanding Debt Securities of a series; provided, however, that if any
action is to be taken at such meeting with respect to a consent or waiver which
may be given by the holders of not less than a specified percentage, which is
greater than a majority, in principal amount of the outstanding Debt Securities
of a series, the persons holding or representing such specified percentage in
principal amount of the Debt Securities of such series will constitute a quorum.
(Section 13.04).
DEFAULTS AND CERTAIN RIGHTS ON DEFAULT
An Event of Default with respect to any series of Debt Securities is
defined as being any of the following events: default for 30 days in payment of
any interest on the Debt Securities of such series; default in payment
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of principal of (and premium, if any, on) the Debt Securities of such series at
Maturity; default for 90 days after notice in performance of any other covenant
in the Indenture; certain events of bankruptcy, insolvency, receivership or
reorganization relating to the Company; or any other Event of Default provided
with respect to Debt Securities of that series. An Event of Default with respect
to Debt Securities of a particular series does not necessarily constitute an
Event of Default with respect to any other series. The Company will be required
to deliver to the Trustee annually a written statement as to the fulfillment of
its obligations under the Indenture. In case an Event of Default should occur
and be continuing with respect to any series of Debt Securities, the Trustee or
the holders of not less than 25% in principal amount of the Debt Securities of
such series then outstanding may declare the principal of all the Debt
Securities of such series to be immediately due and payable. Such declaration
may, under certain circumstances, be rescinded by the holders of a majority in
principal amount of the Debt Securities of such series at the time outstanding.
(Sections 5.01, 5.02 and 10.04).
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
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the holders of Debt Securities,
unless such holders of Debt Securities shall have offered to the Trustee
security or indemnity. Subject to such provisions for indemnification and
certain limitations contained in the Indenture, the holders of a majority in
principal amount of the Debt Securities of any series at the time outstanding
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 with respect to Debt Securities of such series.
The holders of a majority in principal amount of the Debt Securities of any
series at the time outstanding may, in certain cases, waive any past default
with respect to Debt Securities of such series except a default (i) in payment
of principal of, or premium, if any, or interest on any of the Debt Securities
of such series 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 Debt Security of such series affected. (Sections 5.12, 5.13 and 6.03).
GOVERNING LAW
The Indenture and the Debt Securities and any coupons appertaining thereto
will be governed by and construed in accordance with the laws of the State of
New York. (Section 1.12).
CONCERNING THE TRUSTEE
The Trustee is one of a number of banks with which the Company maintains
ordinary banking relationships and with which the Company maintains credit
facilities.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities: (i) through one or more
underwriters or dealers; (ii) directly to a limited number of purchasers or a
single purchaser; (iii) through one or more agents; or (iv) through a
combination of such methods of sale. The Prospectus Supplement relating to the
Offered Debt Securities will set forth the terms of the offering, including the
name or names of any underwriters or dealers and the respective amounts of the
Offered Debt Securities underwritten or purchased by each of them, the purchase
price of the Offered Debt Securities and the proceeds to the Company from such
sale, any underwriting discounts, commissions and other items constituting
underwriters' compensation from the Company, any initial public offering price,
any discounts or concessions allowed or reallowed or paid to dealers and any
securities exchanges on which the Offered Debt Securities may be listed.
If underwriters are used in the sale, the Debt Securities will be acquired
by the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of the sale. The Debt
Securities may be offered to the public through underwriting syndicates
represented by managing underwriters or directly by underwriters. Unless
otherwise set forth in the Prospectus Supplement, the obligations of the
underwriters to purchase the Offered Debt Securities will be subject to certain
conditions precedent, and the underwriters will
14
<PAGE> 16
be obligated to purchase all the Offered Debt Securities if any are purchased.
Any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
If agents are used in the sale, the Prospectus Supplement will set forth
the name of any agent involved in the offer or sale of the Offered Debt
Securities in respect of which the Prospectus Supplement is delivered as well as
any commissions payable by the Company to such agent. Unless otherwise indicated
in the Prospectus Supplement, any such agent will be acting on a best efforts
basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain specified investors
to purchase Offered 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 those conditions set forth in the Prospectus
Supplement, and the Prospectus Supplement will set forth the commission payable
for solicitation of such contracts and the date or dates in the future for
delivery of the Offered Debt Securities pursuant to such contracts.
In connection with an offering of Debt Securities, the underwriters or
agents, as the case may be, may purchase and sell the Debt Securities in the
open market. These transactions may include over-allotment and stabilizing
transactions and purchases to cover syndicate short positions created in
connection with the offering. Stabilizing transactions consist of certain bids
or purchases for the purpose of preventing or retarding a decline in the market
price of the Debt Securities; and syndicate short positions involve the sale by
underwriters or agents, as the case may be, of a greater number of Debt
Securities than they are required to purchase from the Company in the offering.
The underwriters may also impose a penalty bid, whereby selling concessions
allowed to syndicate members or other broker-dealers in respect of the Debt
Securities sold in the offering for their account may be reclaimed by the
syndicate if such Debt Securities are repurchased by the syndicate in
stabilizing or covering transactions. These activities may stabilize, maintain
or otherwise affect the market price of the Debt Securities, which may be higher
than the price that might otherwise prevail in the open market. Underwriters or
agents are not required to engage in these activities, and may end any of these
activities at any time.
Subject to certain conditions, the Company may agree to indemnify
underwriters, dealers, agents or purchasers and their controlling persons
against certain civil liabilities, including liabilities under the Securities
Act, or to contribute with respect to payments which such persons may be
required to make in respect thereof. Such persons may be customers of, engage in
transactions with, or perform services for the Company in the ordinary course of
business.
EXPERTS
The consolidated financial statements as of September 30, 1997 and 1996 and
for each of the three years in the period ended September 30, 1997 and the
related financial statement schedule incorporated by reference in this
Prospectus from the Company's Annual Report on Form 10-K for the year ended
September 30, 1997 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their reports, which are incorporated herein by
reference, and have been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
15
<PAGE> 17
LEGAL MATTERS
The legality of the Debt Securities offered hereby has been passed upon for
the Company by Chadbourne & Parke LLP, 30 Rockefeller Plaza, New York, New York
10112, and, if the Debt Securities are distributed in an underwritten offering,
will be passed upon for the underwriters by Dewey Ballantine LLP, 1301 Avenue of
the Americas, New York, New York 10019-6092.
------------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN AS CONTAINED IN THIS
PROSPECTUS OR, WITH RESPECT TO ANY OFFERED DEBT SECURITIES, IN THE RELATED
PROSPECTUS SUPPLEMENT, IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS AND
ANY RELATED PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR ANY UNDERWRITER OR AGENT. THIS PROSPECTUS AND ANY RELATED PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY OF THE SECURITIES OFFERED HEREBY 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 IN SUCH JURISDICTION. NEITHER THE DELIVERY OF
THIS PROSPECTUS OR ANY RELATED PROSPECTUS SUPPLEMENT, NOR ANY SALE MADE
HEREUNDER OR THEREUNDER, SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF OR THEREOF OR THAT THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE
HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
16
<PAGE> 18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<CAPTION>
AMOUNT
--------
<S> <C>
SEC Filing Fee............................................. $147,500
*Rating Agency Fees......................................... 245,000
*Printing and Engraving..................................... 55,000
*Fees and Expenses of Company's Counsel..................... 100,000
*Fees and Expenses of Accountants........................... 40,000
*Fees and Expenses of Trustee............................... 15,000
*Blue-Sky Expenses (including Legal Fees)................... 3,500
*Miscellaneous.............................................. 4,000
--------
*Total............................................ $610,000
</TABLE>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law permits Delaware corporations to
eliminate or limit the monetary liability of directors to a corporation or its
stockholders for breach of their fiduciary duty of care, subject to certain
limitations (8 Del. G.C.L. sec. 102(b)(7)). The last paragraph of Article
Seventh of the Company's Restated Certificate of Incorporation, as amended,
provides that the Company's directors are not liable to the Company or its
shareowners for monetary damages for breach of their fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Company or its shareowners, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) for willful or negligent violation of the provisions of the Delaware
General Corporation Law governing the payment of dividends or the purchase or
redemption of stock or (iv) for any transaction from which a director derived an
improper personal benefit.
The Delaware General Corporation Law provides for indemnification of
directors, officers, employees and agents subject to certain limitations (8 Del.
G.C.L. sec. 145). Section 13 of Article III of the Company's 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 provide,
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 that the Company
or such persons may be required to make in respect of such liabilities.
II-1
<PAGE> 19
ITEM 16. EXHIBITS.
<TABLE>
<S> <C> <C>
1 -- Forms of proposed Underwriting Agreement, Terms Agreement
and Delayed Delivery Contract.*
4 -- Indenture dated as of April 1, 1998 between the Company and
The Chase Manhattan Bank, as Trustee, including table of
contents and cross-reference sheet to Trust Indenture Act of
1939, as amended.*
5 -- Opinion of Chadbourne & Parke LLP as to the legality of the
securities being registered.*
12 -- Computation of Ratio of Earnings to Fixed Charges for the
Five Years ended September 30, 1997 and the Three Months
ended December 31, 1997.*
12a -- Computation of Ratio of Earnings to Fixed Charges for the
Six Months ended March 31, 1998, filed as Exhibit 12 to the
Company's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1998 (File No. 1-13093), is hereby
incorporated by reference.
23a -- Consent of Deloitte & Touche LLP, independent auditors.
23b -- Consent of Chadbourne & Parke LLP contained in their opinion
filed as Exhibit 5 to this Registration Statement.*
23c -- Consent of David W. Greenfield, Esq., Senior Vice President,
General Counsel and Secretary of the Company.*
23d -- Consent of M. Lee Murrah, Esq., Assistant General Counsel of
the Company.*
24 -- Powers of Attorney authorizing certain persons to sign this
Registration Statement on behalf of certain directors and
officers of the Company.*
25 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939, as amended, of The Chase
Manhattan Bank, Trustee under the Indenture.*
</TABLE>
- ------------------
* Previously filed.
ITEM 17. UNDERTAKINGS.
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 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 prospectus filed with the SEC pursuant to
Rule 424(b) under the Securities Act if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement; (iii) to include any
material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change
to such information in the Registration Statement; provided, however, that
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 SEC by the Company pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(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.
II-2
<PAGE> 20
(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 Section 15(d) of the Exchange Act 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.
(5) 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 provisions described above, or
otherwise, the Company has been advised that in the opinion of the SEC 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 against the Company 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.
II-3
<PAGE> 21
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 AMENDMENT TO
THE REGISTRATION STATEMENT ON FORM S-3 (REGISTRATION NO. 333-49777) TO BE SIGNED
ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF
TROY, STATE OF MICHIGAN, ON THE 2ND DAY OF JUNE, 1998.
MERITOR AUTOMOTIVE, INC.
By: /s/ DAVID W. GREENFIELD
------------------------------------
David W. Greenfield
Senior Vice President,
General Counsel and Secretary
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS AMENDMENT TO THE REGISTRATION STATEMENT (REGISTRATION NO. 333-49777) HAS
BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED ON THE 2ND DAY
OF JUNE, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
LARRY D. YOST* Chairman of the Board and Chief Executive
- ----------------------------------------------------- Officer
Larry D. Yost (principal executive officer) and Director
JOSEPH B. ANDERSON, JR.* Director
- -----------------------------------------------------
Joseph B. Anderson, Jr.
DONALD R. BEALL* Director
- -----------------------------------------------------
Donald R. Beall
JOHN J. CREEDON* Director
- -----------------------------------------------------
John J. Creedon
CHARLES H. HARFF* Director
- -----------------------------------------------------
Charles H. Harff
HAROLD A. POLING* Director
- -----------------------------------------------------
Harold A. Poling
Director
- -----------------------------------------------------
Martin D. Walker
THOMAS A. MADDEN* Senior Vice President and Chief Financial
- ----------------------------------------------------- Officer
Thomas A. Madden (principal financial officer)
LAWRENCE J. LOCKWOOD* Vice President and Controller
- ----------------------------------------------------- (principal accounting officer)
Lawrence J. Lockwood
*By /s/ DAVID W. GREENFIELD
-------------------------------------------------
David W. Greenfield
(Attorney-in-fact)**
</TABLE>
- ---------------
** By authority of the powers of attorney filed as Exhibit 24 to the
Registration Statement.
II-4
<PAGE> 22
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
----------- ----------- ----
<S> <C> <C> <C>
1 -- Forms of proposed Underwriting Agreement, Terms Agreement
and Delayed Delivery Contract.*
4 -- Indenture dated as of April 1, 1998 between the Company and
The Chase Manhattan Bank, as Trustee, including table of
contents and cross-reference sheet to Trust Indenture Act of
1939, as amended.*
5 -- Opinion of Chadbourne & Parke LLP as to the legality of the
securities being registered.*
12 -- Computation of Ratio of Earnings to Fixed Charges for the
Five Years ended September 30, 1997 and the Three Months
ended December 31, 1997.*
12a -- Computation of Ratio of Earnings to Fixed Charges for the
Six Months ended March 31, 1998, filed as Exhibit 12 to the
Company's Quarterly Report on,
Form 10-Q for the quarterly period ended March 31, 1998
(File No. 1-13093), is hereby incorporated by reference.
23a -- Consent of Deloitte & Touche LLP, independent auditors.
23b -- Consent of Chadbourne & Parke LLP contained in their opinion
filed as Exhibit 5 to this Registration Statement.*
23c -- Consent of David W. Greenfield, Esq., Senior Vice President,
General Counsel and Secretary of the Company.*
23d -- Consent of M. Lee Murrah, Esq., Assistant General Counsel of
the Company.*
24 -- Powers of Attorney authorizing certain persons to sign this
Registration Statement on behalf of certain directors and
officers of the Company.*
25 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939, as amended, of The Chase
Manhattan Bank, Trustee under the Indenture.*
</TABLE>
- ------------------
* Previously filed.
<PAGE> 1
Exhibit 23a
INDEPENDENT AUDITORS' CONSENT
To The Board of Directors and Stockholders of
Meritor Automotive, Inc.
Troy, Michigan
We consent to the incorporation by reference in this Amendment No. 1 to the
Registration Statement of Meritor Automotive, Inc. on Form S-3 (Registration No.
333-49777) of our reports dated November 12, 1997, appearing in and incorporated
by reference in the Annual Report on Form 10-K of Meritor Automotive, Inc. for
the year ended September 30, 1997 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Amendment No. 1 to the
Registration Statement.
DELOITTE & TOUCHE LLP
Detroit, Michigan
June 2, 1998
