<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 6, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
WMX TECHNOLOGIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 36-2660763
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
</TABLE>
3003 BUTTERFIELD ROAD
OAK BROOK, ILLINOIS 60521
PHONE: 708-572-8800
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
------------------------
HERBERT A. GETZ, VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
WMX TECHNOLOGIES, INC.
3003 BUTTERFIELD ROAD
OAK BROOK, ILLINOIS 60521
708-572-8800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPY TO:
MAYER, BROWN & PLATT
190 SOUTH LASALLE STREET
CHICAGO, ILLINOIS 60603
ATTN: DAVID SCHUETTE
312-782-0600
---------------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of the Registration Statement.
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/
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) PER UNIT (2) PRICE (1)(2) FEE
<S> <C> <C> <C> <C>
Debt Securities.................... $1,000,000,000 100% $1,000,000,000 $344,828
</TABLE>
(1) In U.S. dollars or the equivalent thereof in other currencies or composite
securities, and, if any Debt Securities are to be issued at an original
issue discount, such greater amount as shall result in an aggregate offering
price of $1,000,000,000.
(2) Estimated solely for the purpose of calculating the registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
PROSPECTUS
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED APRIL 6, 1994
$1,000,000,000
[LOGO]
WMX TECHNOLOGIES, INC.
DEBT SECURITIES
------------------
WMX Technologies, Inc. (the "Company"), formerly named Waste Management,
Inc., intends from time to time to issue up to U.S. $1,000,000,000, or the
equivalent thereof in other currencies or composite currencies, aggregate
principal amount of its unsecured debt securities (the "Debt Securities"). The
Debt Securities will be offered for sale on terms to be determined when the
agreement to sell is made or at the time of sale, as the case may be. For each
issue of Debt Securities in respect of which this Prospectus is being delivered
(the "Offered Debt Securities") there is an accompanying Prospectus Supplement
(the "Prospectus Supplement") that sets forth the designation, designated
currency, aggregate principal amount, rate or method of calculation of interest,
if any, and dates for payment thereof, maturity, authorized denominations,
initial price, any redemption or prepayment rights at the option of the Company
or the holder and other special terms of the Offered Debt Securities, together
with the terms of the offering of the Offered Debt Securities and the net
proceeds to the Company from the sale thereof. In the event of the issuance of
Debt Securities at original issue discount, the aggregate principal amount of
Debt Securities offered hereby will be a higher amount, provided that the total
price at which Debt Securities are sold to the public pursuant to this
Prospectus will not exceed U.S. $1,000,000,000, or the equivalent thereof in
other currencies or composite currencies. If any agents of the Company or any
underwriters are involved in the sale of the Offered Debt Securities in respect
of which this Prospectus is being delivered, the names of such agents or
underwriters and any applicable commissions and discounts are set forth in the
Prospectus Supplement.
The Debt Securities will be sold directly, through agents designated from
time to time, or through underwriters or dealers.
The Company may make application to list one or more series of Debt
Securities on one or more national securities exchanges. Any such application to
list the Offered Debt Securities is described in the Prospectus Supplement
related thereto.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is April , 1994
<PAGE>
AVAILABLE INFORMATION
WMX Technologies, Inc. (the "Company"), formerly named Waste Management,
Inc., is subject to the informational requirements of the Securities Exchange
Act of 1934 (the "1934 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 public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549;
and at the regional offices of the Commission at Seven World Trade Center, New
York, New York 10048, and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such material can be obtained at prescribed rates from the
Public Reference Section of the Commission, 450 Fifth Street, N.W., Washington,
D.C. 20549. Such reports and other information concerning the Company can also
be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
This Prospectus constitutes a part of a Registration Statement (the
"Registration Statement") filed by the Company with the Commission under the
Securities Act of 1933. This Prospectus omits certain of the information
contained in the Registration Statement, and reference is hereby made to the
Registration Statement and to the exhibits relating thereto for further
information with respect to the Company and the Debt Securities offered hereby.
Any statements contained herein concerning the provisions of any document are
not necessarily complete, and, in each instance, reference is hereby made to the
copy of such document filed as an exhibit to the Registration Statement or
otherwise filed with the Commission. Each such statement is qualified in its
entirety by such reference.
DOCUMENTS INCORPORATED BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 31,
1993 and Current Report on Form 8-K dated February 8, 1994, heretofore filed by
the Company with the Commission under the 1934 Act, are incorporated herein by
reference.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the 1934 Act after the date of this Prospectus and prior to the
termination of the offering of the Debt Securities offered hereby (except to the
extent specified therein or in rules or regulations of the Commission) shall be
deemed to be incorporated in this Prospectus by reference and to be part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes 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 will provide without charge to each person to whom a copy of
this Prospectus has been delivered, on the written or oral request of such
person, a copy of any or all of the documents referred to above which have been
or may be incorporated in this Prospectus by reference other than exhibits to
such documents, unless such exhibits are specifically incorporated by reference
into the incorporated document. Requests for such copies should be directed to:
WMX Technologies, Inc., 3003 Butterfield Road, Oak Brook, Illinois 60521,
Attention: Corporate and Public Affairs Department (telephone: 708/572-8800).
WMX TECHNOLOGIES, INC.
WMX Technologies, Inc. (the "Company"), formerly named Waste Management,
Inc., is a leading international provider of environmental, engineering and
construction, industrial and related services.
Through Waste Management, Inc. (formerly named Waste Management of North
America, Inc.), a wholly owned subsidiary of the Company (referred to herein,
together with its subsidiaries and certain affiliated companies providing solid
waste management and related services, as "WMI"), the Company provides
integrated solid waste management services in North America to commercial,
industrial, municipal and residential customers, as well as to other waste
management companies. These services consist of solid waste collection,
transfer, resource recovery and disposal services. As part of these services,
the Company is
2
<PAGE>
engaged in providing, through its Recycle America-R- and Recycle Canada-R-
programs, paper, glass, plastic and metal recycling services to commercial and
industrial operations and curbside recycling services for such materials to
residences; in removing methane gas from sanitary landfill facilities for use in
electricity generation; and in providing medical and infectious waste management
services to hospitals and other health care and related facilities. In addition,
through WMI the Company provides street sweeping and parking lot cleaning
services, portable fencing and power pole services and Port-O-Let-R- portable
sanitation services to municipalities and commercial customers.
Chemical Waste Management, Inc., an approximately 79%-owned subsidiary of
the Company (referred to herein, together with its subsidiaries other than Rust
(as defined below), as "CWM"), is a leading provider of hazardous waste
management services in the United States. Its chemical waste management
services, including transportation, treatment, resource recovery and disposal,
are furnished to commercial and industrial customers, as well as to other waste
management companies and to governmental entities. CWM also furnishes
radioactive waste management services, primarily to electric utilities and
governmental entities.
Wheelabrator Technologies Inc., an approximately 55%-owned subsidiary of the
Company (referred to herein, together with its subsidiaries, as "WTI"), provides
a wide array of environmental products and services in North America and abroad.
WTI's clean energy group is a leading developer of facilities and systems for,
and provider of services to, the trash-to-energy, energy and independent power
markets. Through the clean energy group, WTI develops, arranges financing for,
operates and owns facilities that dispose of trash and other waste materials in
an environmentally acceptable manner by recycling it into energy in the form of
electricity and steam. WTI's clean water group is principally involved in the
design, manufacture and operation of facilities and systems used to purify
water, to treat municipal and industrial wastewater, to treat and manage
biosolids resulting from the treatment of wastewater by converting them into
useful fertilizers, and to recycle organic wastes into compost material useable
for horticultural and agricultural purposes. The clean water group also designs
and manufactures various products and systems used in water and wastewater
treatment facilities and industrial facilities, precision profile wire screens
for use in groundwater wells and other industrial applications, and certain
other industrial equipment. WTI's clean air group designs, fabricates and
installs technologically advanced air pollution emission control and measurement
systems and equipment, including systems which remove pollutants from the
emission of WTI's trash-to-energy facilities as well as power plants and other
industrial facilities.
Rust International Inc., a subsidiary owned approximately 56% by CWM and 40%
by WTI (referred to herein, together with its subsidiaries, as "Rust"),
furnishes engineering, construction, environmental and infrastructure
consulting, hazardous substance remediation and a variety of other on-site
industrial and related services primarily to clients in government and in the
chemical, petrochemical, nuclear, energy, utility, pulp and paper,
manufacturing, environmental services and other industries.
The Company provides comprehensive waste management and related services
internationally, primarily through Waste Management International plc, a
subsidiary owned 56% by the Company, 12% by Rust and 12% by WTI (referred to
herein, together with its subsidiaries, as "Waste Management International").
Waste Management International provides a wide range of solid and hazardous
waste management services (or has interests in projects or companies providing
such services) in various countries in Europe and in Argentina, Australia,
Brunei, Hong Kong, Indonesia, Malaysia, New Zealand, Singapore and Taiwan.
On January 1, 1993, CWM and WTI formed Rust and acquired 58% and 42%,
respectively, of Rust's outstanding shares. Rust was created to serve the
engineering, construction, environmental and infrastructure consulting,
hazardous substance remediation and on-site industrial and related services
markets, which the managements of CWM, WTI and The Brand Companies, Inc.
(referred to herein as "Brand") believed could be served more effectively by
organizing the Company's several business units serving those markets into a
single integrated company. WTI contributed primarily its engineering and
construction and environmental and infrastructure consulting services businesses
and its recently formed international engineering unit based in London. CWM
contributed primarily its hazardous substance remediation services business, its
approximately 56% ownership interest in Brand, and its 12% ownership interest in
Waste Management
3
<PAGE>
International. On May 7, 1993, Brand was merged into a subsidiary of Rust, and
shares of Brand (other than those owned by Rust or exchanged for cash in the
merger) were converted into shares of Rust. As a result of such merger, Brand is
now a wholly owned subsidiary of Rust.
The Company also owns an approximately 28% interest in ServiceMaster
Consumer Services L.P., a provider of lawn care, pest control and other consumer
services. The remaining ownership interest is held indirectly by ServiceMaster
Limited Partnership.
Through the end of 1992, the Company categorized its operations into four
industry segments -- solid waste management and related services; hazardous
waste management and related services; energy, environmental and industrial
projects and systems; and international waste management and related services
(consisting of comprehensive waste management and related services provided
outside the United States, Canada and Mexico). Beginning in 1993, the Company
categorized the operations of Rust, which was formed from businesses contributed
by CWM and WTI, as a fifth industry segment -- engineering, construction,
industrial and related services -- and modified the name of its energy
environmental and industrial projects and systems segment to "trash-to-energy,
water treatment, air quality and related services."
The following table shows the respective revenues of these segments for the
Company's last three years, presented as if the above-described Rust transaction
had occurred prior to the periods presented:
<TABLE>
<CAPTION>
(000'S OMITTED)
YEAR ENDED DECEMBER 31
----------------------------------------
1991 1992 1993
------------ ------------ ------------
<S> <C> <C> <C>
Solid Waste Management and Related Services............................. $ 3,961,111 $ 4,309,614 $ 4,702,166
Hazardous Waste Management and Related Services......................... 720,048 755,088 661,860
Engineering, Construction, Industrial and Related Services.............. 1,236,979 1,441,050 1,534,465
Trash-to-Energy, Water Treatment, Air Quality and Related Services...... 746,042 928,313 1,142,219
International Waste Management and Related Services..................... 1,075,070 1,445,734 1,411,211
Eliminations of Intercompany Revenue.................................... (188,336) (218,772) (316,344)
------------ ------------ ------------
Consolidated Revenue.................................................... $ 7,550,914 $ 8,661,027 $ 9,135,577
------------ ------------ ------------
------------ ------------ ------------
</TABLE>
For information relating to expenses and identifiable assets attributable to
the Company's different industry segments, see Note 10 to the Company's
Consolidated Financial Statements incorporated in this prospectus by reference
to the Company's annual report on Form 10-K for the year ended December 31,
1993. For interim periods, the revenue and net income of certain of the
Company's businesses may fluctuate for a number of reasons, including there
being for some businesses less activity during the winter months.
Regulatory or technological developments relating to the environment may
require companies engaged in environmental services businesses, including the
Company, to modify, supplement or replace equipment and facilities at costs
which may be substantial. Because certain of the businesses in which the Company
is engaged are intrinsically connected with the protection of the environment
and the potential discharge of materials into the environment, a material
portion of the Company's capital expenditures is, directly or indirectly,
related to such items. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations" incorporated in this prospectus by
reference to the Company's annual report on Form 10-K for the year ended
December 31, 1993 for a review of property and equipment expenditures by the
Company for 1991, 1992 and 1993. The Company does not expect such expenditures,
which are incurred in the ordinary course of business, to have a materially
adverse impact on its and its subsidiaries' combined earnings or its
subsidiaries' competitive position in the foreseeable future because the
Company's businesses are based upon compliance with environmental laws and
regulations and its services are priced accordingly.
Although the Company strives to conduct its operations in compliance with
applicable laws and regulations, the Company believes that in the existing
climate of heightened legal, political and citizen awareness and concerns,
companies in the environmental services industry, including the Company, will be
faced, in the normal course of operating their businesses, with fines and
penalties and the need to expend funds for remedial work and related activities
with respect to waste treatment, disposal and trash-to-energy
4
<PAGE>
facilities. Where the Company concludes that it is probable that a liability has
been incurred, a provision is made in the Company's financial statements for the
Company's best estimate of the liability, based on management's judgment and
experience, information available from regulatory agencies and the number,
financial resources and relative degree of responsibility of other potentially
responsible parties who are jointly and severally liable for remediation of a
particular site, as well as the typical allocation of costs among such parties.
If a range of possible outcomes is estimated and no amount within the range
appears to be a better estimate than any other, then the Company provides for
the minimum amount within the range, in accordance with generally accepted
accounting principles. Such estimates are subsequently revised, as necessary, as
additional information becomes available. While the Company does not anticipate
that the amount of any such revisions will have a material adverse effect on the
Company's operations or financial condition, the measurement of environmental
liabilities is inherently difficult and the possibility remains that
technological, regulatory or enforcement developments, the results of
environmental studies, or other factors could materially alter this expectation
at any time. Such matters could have a material adverse impact on earnings for
one or more fiscal quarters or years.
While in general the Company's environmental services businesses have
benefited substantially from increased governmental regulation, the
environmental services industry itself has become subject to extensive and
evolving regulation by federal, state, local and foreign authorities. Due to the
complexity of regulation of the industry and to public pressure, implementation
of existing and future laws, regulations or initiatives by different levels of
government may be inconsistent and difficult to foresee. The Company makes a
continuing effort to anticipate regulatory, political and legal developments
that might affect its operations but is not always able to do so. The Company
cannot predict the extent to which any legislation or regulation that may be
enacted or enforced in the future may affect its operations.
The Company was incorporated in Delaware in 1968 and subsequently succeeded
to certain businesses owned by its organizers and others. The Company's common
stock is listed on the New York Stock Exchange under the trading symbol "WMX"
and is also listed on the Frankfurt Stock Exchange, the London Stock Exchange,
the Chicago Stock Exchange and the Swiss Stock Exchanges in Basle, Zurich and
Geneva.
USE OF PROCEEDS
Except as otherwise set forth in the Prospectus Supplement relating to the
Offered Debt Securities, net proceeds to be received by the Company from the
sale of the Debt Securities will be used to retire outstanding indebtedness of
the Company arising from the Company's issuance of commercial paper or other
debt, to fund future acquisitions by the Company and for general corporate
purposes. Pending any such application, the proceeds may be invested temporarily
in short-term securities.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture dated as of June 1,
1993, between the Company and The Fuji Bank and Trust Company, as Trustee (the
"Indenture"). A copy of the Indenture has been incorporated by reference as an
exhibit to the Registration Statement. The following summaries of certain
provisions of the Debt Securities and the Indenture do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Indenture, including the definitions therein of
certain terms. Wherever particular provisions or defined terms of the Indenture
(or of any Form of Debt Security which is adopted pursuant to the Indenture) are
referred to, such provisions or defined terms are incorporated herein by
reference.
GENERAL
The Indenture does not limit the amount of Debt Securities which can be
issued thereunder and provides that Debt Securities may be issued thereunder in
one or more series up to the aggregate principal amount which may be authorized
from time to time by the Company. Reference is made to the Prospectus Supplement
for the following terms of the Offered Debt Securities: (i) the designation,
aggregate principal amount and authorized denominations of the Offered Debt
Securities; (ii) the percentage of their principal amount at which such Offered
Debt Securities will be issued; (iii) the date on which the Offered Debt
5
<PAGE>
Securities will mature; (iv) the rate per annum at which the Offered Debt
Securities will bear interest, if any; (v) the times at which such interest will
be payable; and (vi) any redemption terms and other special terms. Reference is
also made to the Prospectus Supplement relating to the Offered Debt Securities
for information with respect to any additional covenants that may be included in
the terms of such securities.
The Debt Securities will be issued only in fully registered form without
coupons, which form may be a Global Debt Security as described below. See
"Book-Entry, Delivery and Form." The Company will not charge a service charge
for any registration of transfer or exchange of Debt Securities but may require
payment of a sum sufficient to cover any tax or other governmental charge in
connection therewith. (Section 2.6.)
The Debt Securities will be direct obligations of the Company and will be
unsecured. The Indenture does not restrict the amount of additional unsecured
debt which the Company may incur.
Some of the Debt Securities may be issued at a substantial discount below
their stated principal amount. Federal income tax consequences and other special
considerations applicable to any such discounted Debt Securities will be
described in the Prospectus Supplement relating thereto.
BOOK-ENTRY, DELIVERY AND FORM
If the accompanying Prospectus Supplement so indicates, the Offered Debt
Securities will be issued in the form of one or more fully registered Global
Debt Securities. The Global Debt Security will be deposited with, or on behalf
of, The Depository Trust Company, New York, New York (the "Depositary") and
registered in the name of the Depositary's nominee. The Depository currently
limits the maximum denomination of any single Global Debt Security to
$150,000,000. Therefore for purposes hereof, "Global Debt Security" refers to
the Global Debt Security or Global Debt Securities representing the entire issue
of Offered Debt Securities.
Except as set forth below, the Global Debt Security may be transferred, in
whole and not in part, only to another nominee of the Depositary or to a
successor of the Depositary or its nominee.
The Depositary has advised the Company and any underwriters named in the
accompanying Prospectus Supplement as follows: It is a limited-purpose trust
company which was created to hold securities for its participating organizations
(the "Participants") and to facilitate the clearance and settlement of
transactions in such securities between Participants through electronic
book-entry changes in accounts of its Participants. Participants include
securities brokers and dealers (including the underwriters), banks, trust
companies, clearing corporations and certain other organizations. Access to the
Depositary's book-entry system is also available to others, such as banks,
brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly ("indirect
participants"). Persons who are not Participants may beneficially own securities
held by the Depositary only through Participants or indirect participants.
The Depositary has also advised that pursuant to procedures established by
it (i) upon the issuance by the Company of the Debt Securities, the Depositary
will credit the accounts of Participants designated by the underwriters with the
principal amount of the Debt Securities purchased by the underwriters, and (ii)
ownership of interests in the Global Debt Security will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
the Depositary (with respect to Participants' interests), the Participants and
the indirect participants. The laws of some states require that certain persons
take physical delivery in definitive form of securities which they own.
Consequently, the ability to transfer interests in the Global Debt Security is
limited to such extent.
So long as a nominee of the Depositary is the registered owner of the Global
Debt Security, such nominee will be considered the sole owner or holder of the
Debt Securities for all purposes under the Indenture. Except as provided below,
owners of interests in the Global Debt Security will not be entitled to have
Debt Securities registered in their names, will not receive or be entitled to
receive physical delivery of Debt Securities in definitive form and will not be
considered the owners or holders thereof under the Indenture.
6
<PAGE>
Neither the Company, the Trustee, the Paying Agent nor the Registrar will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of interests in the Global Debt Security, or for
maintaining, supervising or reviewing any records relating to such interests.
Principal and interest payments on the Global Debt Security registered in
the name of the Depositary's nominee will be made by the Company through the
Paying Agent to the Depositary's nominee as the registered owner of the Global
Debt Security. Under the terms of the Indenture, the Company and the Trustee
will treat the persons in whose names the Debt Securities are registered as the
owners of such Debt Securities for the purpose of receiving payments of
principal and interest on such Debt Securities and for all other purposes
whatsoever. Therefore, neither the Company, the Trustee nor the Paying Agent has
any direct responsibility or liability for the payment of principal or interest
on the Debt Securities to owners of interests in the Global Debt Security. The
Depositary has advised the Company and the Trustee that its present practice is,
upon receipt of any payment of principal or interest to credit immediately the
accounts of the Participants with payment in amounts proportionate to their
respective holdings in principal amount of interests in the Global Debt Security
as shown on the records of the Depositary. Payments by Participants and indirect
participants to owners of interest in the Global Debt Security 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" and will be the responsibility of such Participants or indirect
participants.
If the Depositary is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by the Company within 90
days, the Company will issue Debt Securities in definitive form in exchange for
the Global Debt Security. In addition, the Company may at any time determine not
to have the Debt Securities represented by a Global Debt Security and, in such
event, will issue Debt Securities in definitive form in exchange for the Global
Debt Security. In either instance, an owner of an interest in the Global Debt
Security will be entitled to have Debt Securities equal in principal amount to
such interest registered in its name and will be entitled to physical delivery
of such Debt Securities in definitive form. Debt Securities so issued in
definitive form will be issued in denominations of $1,000 and integral multiples
thereof and will be issued in registered form only, without coupons.
REDEMPTION AT THE OPTION OF THE HOLDERS IN CERTAIN CIRCUMSTANCES
The Indenture provides, if such provision is made applicable to the Debt
Securities of any series, that if, during the period beginning on the date of
first public announcement by the Company or any other Person (including, without
limitation, directors or officers of the Company) of an intention to effect or
the occurrence of (whichever is the first to occur) a Restructuring Event and
ending 90 days thereafter (or such longer period as the rating of the Debt
Securities of such series shall be under publicly announced consideration by
Moody's or Standard & Poor's), both Moody's and Standard & Poor's shall have (A)
lowered their rating of the Debt Securities of such series from an Investment
Grade rating to a rating below Investment Grade, or (B) withdrawn an Investment
Grade rating from and ceased to rate the Debt Securities of such series (a
"Rating Event") (it being understood that, if the Debt Securities of such series
are already rated below Investment Grade by Moody's or Standard & Poor's at the
beginning of such period, a subsequent lowering or withdrawal of such rating
shall not be deemed to be a Rating Event), the Company shall give notice of such
Rating Event not more than 15 days after the occurrence of such Rating Event, to
the trustee and to each Holder, together with the information referred to in the
penultimate sentence of this paragraph (the "Put Option Notice"). Each Holder
shall have the option (the "Put Option") exercisable during the period of 30
days commencing on the date such Put Option Notice is given (the "Option
Period") to have all his Debt Securities of such series (or any portion thereof
designated by such Holder and having an aggregate principal amount of $1,000 or
a whole multiple thereof) redeemed on the date falling 15 days after the end of
the Option Period, or if such day is not a Business Day, on the next succeeding
Business Day (the "Payment Date"), at their principal amount together with
interest accrued to the Payment Date. To exercise the Put Option, a Holder must
deliver to the Company or the Put Agent, if any, on or before the end of the
Option Period, (i) written notice of such Holder's exercise of such Put Option,
which notice shall set forth expressly the name and address of such Holder and
the aggregate principal amount of Debt Securities of such series with respect to
which such Put Option is exercised and (ii) the Debt Security or Debt Securities
of such series
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<PAGE>
as to which such Holder is exercising such Put Option, duly endorsed, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Put Agent, if any, duly executed by such Holder or his attorney
duly authorized in writing. Once a Holder has exercised his Put Option, such
exercise may not be withdrawn without the prior written consent of the Company.
The Company shall include in the Put Option Notice a statement of facts showing
that a Rating Event has occurred (including details of the first public
announcement, or (as the case may be) the occurrence, of the Restructuring
Event) and a statement to the effect that each Holder has the benefit of the Put
Option referred to above and shall also specify the dates of the Option Period,
the Payment Date, the fact that interest will cease to accrue on and after the
Payment Date, the Put Agent, if any, and the manner in which Holders will be
able to exercise the Put Option. Notwithstanding the foregoing, the Company need
not give the Put Option Notice, and Holders shall not have a Put Option, with
respect to a Rating Event if either Moody's or Standard & Poor's shall have
publicly announced that such Rating Event was solely the result of events or
circumstances wholly unrelated to a Restructuring Event. (Article 10.)
For the purposes of this provision, the following terms shall have the
following meanings:
(i) "Restructuring Event" means any of the following: (1) any Person
becoming the Beneficial Owner of Voting Stock of the Company having more
than 30 percent of the voting power of all of the then outstanding Voting
Stock of the Company; (2) individuals who are not Continuing Directors
constituting a majority of the Board of Directors of the Company; (3) the
Company consolidating with or merging into any other Person, or any other
Person consolidating with or merging into the Company, pursuant to a
transaction in which capital stock of the Company then outstanding (other
than capital stock held by the Company or capital stock held by any Person
which is a party to such consolidation or merger) is changed or exchanged;
(4) the Company, in one transaction or a series of related transactions,
conveying, transferring or leasing, directly or indirectly, all or
substantially all of the assets of the Company and its Subsidiaries taken as
a whole (other than to a wholly owned subsidiary of the Company); or (5) the
Company or any of its Subsidiaries paying or effecting a dividend or
distribution (including by way of recapitalization or reclassification) in
respect of its capital stock (other than solely to the Company or any of its
wholly owned subsidiaries and other than solely for capital stock of the
Company), or purchasing, redeeming, retiring, exchanging or otherwise
acquiring for value any of its capital stock (other than solely from the
Company or any of its wholly owned subsidiaries and other than solely for
capital stock of the Company), if the cash and Fair Market Value of the
securities and assets paid or distributed (except to the Company or any
Subsidiary) in connection therewith (determined on the record date for such
dividend or distribution or the effective date for such purchase,
redemption, retirement, exchange or other acquisition), together with the
cash and Fair Market Value of the securities and assets paid or distributed
in connection with all other such dividends, distributions, purchases,
redemptions, retirements, exchanges and acquisitions effected (except as
received by the Company or any Subsidiary) within the 12-month period
preceding the record date for such dividend or distribution or the effective
date for such purchase, redemption, retirement, exchange or other
acquisition (any such Fair Market Value being determined on the respective
record or effective dates for such other dividends, distributions,
purchases, redemptions, retirements, exchanges and acquisitions), exceeds 30
percent of the aggregate Fair Market Value of all capital stock of the
Company outstanding on the record date for such dividend or distribution or
the effective date for such purchase, redemption, retirement, exchange or
other acquisition (determined on such record or effective date);
(ii) "Moody's" means Moody's Investors Service, Inc. and "Standard &
Poor's" means Standard & Poor's Corporation or, in either case, any of their
respective successors carrying on substantially the same business of
providing ratings for securities as carried on by the predecessor
corporation;
(iii) "Investment Grade" means a rating of at least Baa3 (or the
equivalent thereof), in the case of a rating by Moody's, and a rating of at
least BBB-(or the equivalent thereof), in the case of a rating by Standard &
Poor's.
If such provision is made applicable to the Debt Securities of any series,
the Board of Directors will have no authority under the Indenture to waive such
provision.
8
<PAGE>
The Company has agreed that for so long as any of the Debt Securities of
such series are outstanding and the Put Option has not arisen, it shall provide
such information, pay such customary rating service fees and related expenses
and take all other reasonable action as shall be necessary or appropriate to
enable each of Moody's and Standard & Poor's to provide a rating of the Debt
Securities of such series. There can be no assurance that the Company will have
available funds for redemption of Debt Securities on the Payment Date.
The Company will comply with Section 14(e) under the 1934 Act to the extent
applicable, and any other tender offer rules under the 1934 Act which may then
be applicable, in connection with any obligation of the Company to purchase
Offered Debt Securities at the option of the holders thereof as described above.
Any such obligation applicable to a series of Debt Securities will be described
in the Prospectus Supplement or Prospectus Supplements relating thereto.
MERGERS AND SALES OF ASSETS BY THE COMPANY
The Company may consolidate with or merge into any other corporation, or
transfer or lease all or substantially all of its assets to another corporation,
provided that (i) the corporation formed by such consolidation or into which the
Company is merged or the corporation to which all or substantially all of the
Company's assets are transferred or leased shall expressly assume the payment of
the principal of the Debt Securities and the performance of the other covenants
of the Company under the Debt Securities and the Indenture, and (ii) no Event of
Default, or event which, after notice or lapse of time or both, would become an
Event of Default, shall exist immediately after such transaction. (Section 5.1.)
LIMITATION ON SECURITY INTERESTS
The Company covenants in the Indenture that it will not, nor will it permit
any Restricted Subsidiary to, create, incur, assume or suffer to exist any
Indebtedness if such Indebtedness is secured by a Security Interest upon any
property or assets of the Company or a Restricted Subsidiary, whether owned at
the date of the Indenture or thereafter acquired, without effectively securing
the Debt Securities equally and ratably with (or prior to) such Indebtedness.
The foregoing restriction does not apply to (i) any Security Interest on any
property acquired, constructed, developed or improved which is created or
assumed within 120 days after such acquisition, construction, development or
improvement, or the commencement of operation or use of such property, to secure
or provide for the payment of the purchase price or cost thereof; (ii) any
Security Interest existing on property at the time it is acquired, or any
conditional sales agreement or other title retention agreement with respect to
property acquired, by the Company or a Restricted Subsidiary, any Security
Interest existing on any property or shares of stock of a corporation or firm at
the time it is merged into or consolidated with, or sells, leases or disposes of
its property as an entirety to, the Company or a Restricted Subsidiary, or
becomes a Restricted Subsidiary, or any Security Interest existing on the
property, assets or capital stock of any successor to the Company; provided, in
each case, that such Security Interest shall not apply to any property or assets
theretofore owned by the Company or a Restricted Subsidiary; (iii) any
mechanics', materialmen's, carriers' or other similar liens arising in the
ordinary course of business in respect of obligations which are not yet due or
which are being contested in good faith; (iv) any Security Interest arising by
reason of deposits with, or the giving of any form of security to, any
governmental agency or similar body, which is required by law or regulation as a
condition to the transaction of any business or the exercise of any privilege,
franchise or license; (v) any Security Interest for taxes, assessments or
governmental charges or levies not yet delinquent, or already delinquent but the
validity of which is being contested in good faith; (vi) any Security Interest
arising in connection with legal proceedings being contested in good faith,
including any judgment lien so long as execution thereon is stayed; (vii) any
landlord's lien on fixtures located on premises leased by the Company or a
Restricted Subsidiary in the ordinary course of business; (viii) any Security
Interest securing an obligation issued by the United States or any state or any
political subdivision thereof in connection with financing the cost of
construction or acquisition of property; (ix) any Security Interest arising by
reason of deposits necessary to qualify the Company or any Restricted Subsidiary
to conduct business, maintain self-insurance, or obtain the benefit of, or
comply with, any law; (x) any Security Interest that secures any Indebtedness of
a Restricted Subsidiary owing to the Company or another Restricted Subsidiary;
and (xi) extensions, renewals or refundings of the foregoing. (Section 4.4.)
9
<PAGE>
The foregoing restriction does not apply to the creation, incurrence,
assumption or sufferance by the Company or any Restricted Subsidiary of
Indebtedness secured by a Security Interest that would otherwise be subject to
such restriction up to an aggregate amount which, together with all other
Indebtedness secured by Security Interests (not including secured Indebtedness
permitted under the foregoing exceptions) and the Attributable Debt (generally
defined as discounted net rental payments) associated with Sale and Leaseback
Transactions existing at such time (other than Sale and Leaseback Transactions
the proceeds of which have been or will be applied as set forth in clause (c) or
(d) of the next succeeding caption "Limitation on Sale and Leaseback
Transactions", other than Sale and Leaseback Transactions in which the property
involved would have been permitted to be secured under clause (i) of the
immediately preceding paragraph and other than Sale and Leaseback Transactions
between the Company and a Subsidiary), does not exceed 20% of the consolidated
net worth of the Company and its Subsidiaries as shown on the latest available
published consolidated balance sheet of the Company and its Subsidiaries.
(Section 4.4.)
The Indenture defines "Restricted Subsidiary" as any Subsidiary (other than
any Subsidiary of which the Company owns less than all of the outstanding voting
stock) principally engaged in, or whose principal assets consist of property
used by the Company or any Restricted Subsidiary in, the storage, collection,
transfer, interim processing of disposal of waste within the United States or
Canada, or which the Company designates as a Restricted Subsidiary.
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS
The Company covenants in the Indenture that neither it nor any Restricted
Subsidiary will enter into any arrangement (other than with a Subsidiary)
providing for the leasing to the Company or any Restricted Subsidiary of any
property (except for temporary leases for a term, including renewals, of not
more than three years and except for leases between the Company and any
Restricted Subsidiary or between any Restricted Subsidiaries) which has been or
is to be sold by the Company or such Restricted Subsidiary to the lessor unless
(a) the Company or such Restricted Subsidiary would be entitled to incur
Indebtedness secured by a Security Interest on the property to be leased without
securing the Debt Securities under clause (i) of the first paragraph under the
preceding caption "Limitation on Security Interests", (b) the Attributable Debt
associated therewith would be an amount permitted under the second paragraph
under the preceding caption, (c) the Company applies an amount equal to the fair
value (as determined by the Board of Directors) of such property to the
retirement of Debt Securities on certain funded debt of the Company or a
Restricted Subsidiary, or (d) the Company enters into a bona fide commitment to
expend for the acquisition or capital improvement of an Important Property an
amount at least equal to the fair value of such property. (Section 4.5.)
LIMITATION ON FUNDED DEBT OF RESTRICTED SUBSIDIARIES
The Company covenants in the Indenture that it will not permit any
Restricted Subsidiary (a) to create, assume or suffer to exist any funded debt
other than (i) funded debt secured by a Security Interest which is permitted to
such Restricted Subsidiary under the limitations set forth under the preceding
caption "Limitation on Security Interests," (ii) funded debt owed to the Company
or any Subsidiary, (iii) funded debt of a corporation or other entity existing
at the time it becomes a Restricted Subsidiary or is merged with or into the
Company or a Restricted Subsidiary or other entity, (iv) funded debt of a
corporation or other entity assumed by the Company or a Restricted Subsidiary in
the acquisition of all or a portion of the business of such corporation or other
entity, (v) funded debt existing as of the date of the Indenture, or (vi) funded
debt created in connection with, or with a view to, compliance by such
Restricted Subsidiary with the requirements of, any program adopted by any
federal, state or local governmental authority and applicable to such Restricted
Subsidiary and providing financial or tax benefits to such Restricted Subsidiary
which are not available directly to the Company on substantially the same terms
as such Restricted Subsidiary; or (b) to guarantee, directly or indirectly
through any arrangement which is substantially the equivalent of a guarantee,
any funded debt except for (i) guarantees existing as of the date of the
Indenture, (ii) guarantees which, as of the date of the Indenture, a Restricted
Subsidiary is obligated to give, (iii) guarantees issued to the Company or any
Restricted Subsidiary or (iv) guarantees of funded debt which is permitted to a
Restricted Subsidiary under the preceding clause (a).
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<PAGE>
Notwithstanding the foregoing, any Restricted Subsidiary may create, assume
or guarantee funded debt in addition to that permitted under the preceding
paragraph, and renew, extend or replace such funded debt, PROVIDED that at the
time of such creation, assumption, guarantee, renewal, extension or replacement,
and after giving effect thereto, funded debt of Restricted Subsidiaries not
otherwise permitted pursuant to provisions described in the preceding paragraph
does not exceed 10% of the consolidated net worth of the Company and its
Subsidiaries as shown on the latest available published consolidated balance
sheet of the Company and its Subsidiaries. (Section 4.6.)
EVENTS OF DEFAULT; NOTICE AND WAIVER
The Indenture provides that, if an Event of Default specified therein occurs
and is continuing with respect to any series of Debt Securities, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Debt Securities then outstanding of the series may declare the principal of such
series (or such portion of the principal as may be specified as due upon
acceleration at that time in the terms of that series), to be immediately due
and payable. (Section 6.2.)
Events of Default with respect to any series of Debt Securities are defined
as: (i) default in the payment of interest on such Debt Securities which has
continued for a period of 30 days, (ii) default in the payment of principal on
such Debt Securities when such becomes due and payable, (iii) failure by the
Company to comply with any of its other agreements in the Debt Securities of
such series or in the Indenture upon the specified notice to the Company of such
default by the Trustee or by the Holders of not less than 25% in aggregate
principal amount of the Debt Securities then outstanding of the series, and the
Company's failure to cure such Default within 60 days after receipt of such
notice, or (iv) certain events of bankruptcy or insolvency. (Section 6.1.)
The Trustees shall mail to the Holders of each series of Debt Securities a
notice of any continuing Default known to the Trustee with respect to such
series within 90 days of the occurrence of such Default, but the Trustee may
withhold from such Holders such notice as to any Default other than a Default in
any payment on any Debt Security if the Trustee determines in good faith that
the withholding of such notice is in the interests of such Holders. (Section
7.5.)
No Holder of any Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless (i) such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to that series,
(ii) the Holders of at least 25% in aggregate principal amount of the
outstanding Debt Securities of the series shall have made written request to the
Trustee to institute such proceeding as Trustee, (iii) such Holders have offered
to the Trustee indemnity satisfactory to the Trustee, (iv) the Trustee shall not
have complied with the request within 60 days after receipt of the request and
offer of indemnity, and (v) the Trustee shall not have received from the Holders
of a majority in aggregate principal amount of the outstanding Debt Securities
of the series a direction inconsistent with such request within such 60 day
period. A Holder of any series may not use the Indenture to prejudice the rights
of another Holder of that series or to obtain a preference or priority over
another Holder of that series. (Section 6.6.) The Holder of any Debt Security,
however, has an absolute right to receive payment of the principal of such Debt
Security, and any interest thereon, on or after the due date expressed in such
Debt Security and to institute suit for the enforcement of any such payment.
(Section 6.7.) The Holders of a majority in aggregate principal amount of the
outstanding Debt Securities of any series may, with proper notice to the
Trustee, waive an existing Default other than a Default in any payment of the
principal of, or any interest on, such Debt Security of that series. (Section
6.4.)
The Company will be required to furnish to the Trustee annually a statement
as to any default by the Company in the performance and observance of its
obligations under the Indenture. (Section 4.3.)
MODIFICATION
The Company and the Trustee may amend the Indenture or the Debt Securities
of any series with the written consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Debt Securities of each series
affected by the amendment. However, without the consent of the Holder of each
Debt Security affected thereby, no amendment may, among other things: (i) reduce
the amount of Debt
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Securities whose Holders must consent to an amendment; (ii) reduce the rate or
change the time for payment of interest on any such Debt Security; (iii) reduce
the principal of or change the fixed maturity of any such Debt Security; or (iv)
make any such Debt Security payable in money other than that stated in the Debt
Security. (Section 9.2.)
DEFEASANCE AND DISCHARGE
The Indenture provides that the Company and the Trustee may, without the
consent of the Holders, execute a supplemental indenture to provide that the
Company will be discharged from any and all obligations in respect of the Debt
Securities of any series (except for certain obligations to register the
transfer or exchange of Debt Securities, to replace stolen, lost or mutilated
Debt Securities, to maintain a paying agency and to hold moneys for payment in
trust) upon the deposit with the Trustee, in trust, of money or U.S. Government
Obligations or both, 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 the principal of, and any interest on, and any mandatory
sinking fund or analogous payments in respect of, the Debt Securities of that
series on the date such amounts are due and payable, in accordance with the
terms of the Indenture and such Debt Securities. Such a supplemental indenture
may only be executed if the Company has received from, or there has been
published by, the United States Internal Revenue Service a ruling to the effect
that such a discharge will not be deemed, or result in, a taxable event with
respect to the Holders. The provisions of such a supplemental indenture will not
be applicable to any series of Debt Securities then listed on the New York Stock
Exchange if the provision would cause that series to be delisted as a result
thereof. (Section 9.1.)
DEFEASANCE OF CERTAIN COVENANTS
The terms of the Debt Securities may provide the Company with the option to
omit to comply with the covenants described under the headings "Limitation on
Security Interests", "Limitation on Sale and Leaseback Transactions" and
"Limitation on Funded Debt of Restricted Subsidiaries" above. If such terms make
such option available with respect to the Debt Securities of any series, the
Company, in order to exercise such option, will be required to deposit with the
Trustee, in trust, money or U.S. Government Obligations or both, 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 the principal of,
and any interest on, and any mandatory sinking fund or analogous payments in
respect of, the Debt Securities of that series on the date such amounts are due
and payable, in accordance with the terms of the Indenture and such Debt
Securities. The Company must also deliver to the Trustee an opinion of counsel
to the effect that the deposit and related covenant defeasance will not cause
the Holders of such Debt Securities to recognize income, gain or loss for
federal income tax purposes. (Section 4.7.)
INFORMATION CONCERNING THE TRUSTEE
The Fuji Bank and Trust Company is the Trustee under the Indenture. The
Company has issued various series of debt securities under the Indenture, as
well as another indenture pursuant to which the Trustee is trustee. The Company
maintains deposit accounts and conducts other banking transactions with the
Trustee in the ordinary course of business.
Under the Indenture, the Trustee is required to transmit annual reports to
all Holders regarding its eligibility and qualifications as Trustee under the
Indenture and certain related matters. (Section 7.6.)
Subject to certain exceptions, the Holders of a majority in aggregate
principal amount of outstanding Debt Securities of any series may direct the
Trustee in its exercise of the trust and powers conferred upon it by the
Indenture (Section 6.5.), and may remove the Trustee with the giving of proper
notice. (Section 7.8.)
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities in any of three ways: (i) through
underwriters or dealers, (ii) directly to a limited number of purchasers or to a
single purchaser or (iii) through agents. The Prospectus Supplement with respect
to the Offered Debt Securities sets forth the terms of the offering of the
Offered Debt Securities, including the name or names of any underwriters, the
purchase price of the Offered Debt
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Securities and the proceeds to the Company from such sale, any delayed delivery
arrangements, any underwriting discounts and other items constituting
underwriters' compensation, any initial public offering price and any discounts
or concessions allowed or reallowed or paid to dealers. 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 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 sale. The Debt
Securities may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. The underwriter or underwriters with respect to a
particular underwritten offering of Offered Debt Securities are named in the
Prospectus Supplement relating to such offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters are set forth on the
cover of such Prospectus Supplement. 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 be obligated to purchase all the Offered Debt Securities if
any are purchased.
The Debt Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of the Offered Debt Securities in respect of which this Prospectus is
delivered is named, and any commissions payable by the Company to such agent are
set forth, in the Prospectus Supplement relating thereto. Unless otherwise
indicated in the Prospectus Supplement, any such agent is 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 from certain types of
institutions 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.
Agents and underwriters may be entitled under agreements entered into with
the Company to indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act of 1933. Agents and underwriters
may be customers of, engage in transactions with, or perform services for the
Company in the ordinary course of business.
LEGAL OPINIONS
Certain legal matters in connection with this offering will be passed upon
for the Company by Herbert A. Getz, General Counsel of the Company, and for any
underwriters or agents by Mayer, Brown & Platt, 190 South LaSalle Street,
Chicago, Illinois 60603. Mayer, Brown & Platt acts as counsel for the Company
from time to time on other matters.
EXPERTS
The audited consolidated financial statements and schedules of WMX
Technologies, Inc. and subsidiaries for the year ended December 31, 1993,
incorporated by reference in this Prospectus, have been audited by Arthur
Andersen & Co., independent public accountants, as indicated in their reports
with respect thereto, and are incorporated by reference herein in reliance upon
the authority of said firm as experts in auditing and accounting in giving said
reports. Reference is made to the report of Arthur Andersen & Co. on such
financial statements, which includes an explanatory paragraph with respect to
the Company's change in its methods of accounting for income taxes and
postretirement benefits other than pensions, effective January 1, 1992, as
discussed in notes 1 and 9 to the consolidated financial statements.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The registrant estimates that expenses in connection with the offering
described in this Registration Statement will be as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............... $ 344,828
Printing expenses................................................. 10,000
Accountants' fees and expenses.................................... 10,000
Legal fees and expenses........................................... 10,000
Blue Sky fees and expenses........................................ 10,000
Trustee fees...................................................... 1,500
New York Stock Exchange listing fee (if listed)................... 150,000
Rating Agency fees................................................ 270,000
Miscellaneous..................................................... 15,000
---------
Total......................................................... $ 821,328
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware empowers the
registrant to indemnify, subject to the standards set forth therein, any person
in connection with any action, suit or proceeding brought or threatened by
reason of the fact that he is or was a director, officer, employee or agent of
the registrant, or is or was serving as such with respect to another corporation
at the request of the registrant. The General Corporation Law of Delaware also
provides that the registrant may purchase indemnification insurance on behalf of
any such director, officer, employee or agent. Article Twelfth of the
registrant's Restated Certificate of Incorporation and Section 6 of Article VII
of the registrant's by-laws provide for the indemnification by the registrant of
each director, officer, employee or agent of the registrant to the full extent
permitted by the General Corporation Law of Delaware.
Under an insurance policy maintained by the registrant, the directors and
officers of the registrant are insured, within the limits and subject to the
limitations of the policy, against certain expenses in connection with the
defense of certain claims, actions, suits or proceedings, and certain
liabilities which might be imposed as a result of such claims, actions, suits or
proceedings, which may be brought against them by reason of being or having been
such directors or officers.
The proposed form of Underwriting Agreement -- Basic Provisions incorporated
by reference as Exhibit 1(a) and the proposed form of Distribution Agreement
incorporated by reference as Exhibit 1(b) to this Registration Statement provide
for indemnification of the registrant's directors and its officers who signed
the Registration Statement against certain liabilities, including liabilities
under the Securities Act of 1933.
ITEM 16. EXHIBITS.
A list of the exhibits included or incorporated by reference as part of this
Registration Statement is set forth in the Exhibit Index which immediately
precedes such exhibits, and is hereby incorporated by reference herein.
ITEM 17. UNDERTAKINGS.
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;
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<PAGE>
(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; 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 (i) and (ii) do not apply if the registration
statement is on Form S-3 or Form S-8 and the information required to be included
in a post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to section 13 or section 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(5) 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 Securities Act of 1933 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.
(6) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of a registration statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act of 1933 shall be deemed to be part of the
registration statement as of the time it was declared effective.
(7) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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, or amendment thereto, to be signed on its behalf by the undersigned,
thereunto duly authorized, in Oak Brook, Illinois on April 4, 1994.
WMX TECHNOLOGIES, INC.
By /S/ DEAN L. BUNTROCK
Dean L. Buntrock,
CHAIRMAN OF THE BOARD AND CHIEF
EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
registration statement, or amendment thereto, has been signed by the following
persons in the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- -------------------------------------------------- -------------------------------------- ----------------------
<C> <S> <C>
/S/DEAN L. BUNTROCK Director, Chairman of the Board and
Dean L. Buntrock Chief Executive Officer
/S/JERRY E. DEMPSEY Director
Jerry E. Dempsey
/S/PHILLIP B. ROONEY Director
Phillip B. Rooney
/S/DONALD F. FLYNN Director
Donald F. Flynn
/S/PETER H. HUIZENGA Director
Peter H. Huizenga
/S/PEER PEDERSEN Director
Peer Pedersen
April 4, 1994
/S/JAMES R. PETERSON Director
James R. Peterson
/S/ALEXANDER B. TROWBRIDGE Director
Alexander B. Trowbridge
/S/HOWARD H. BAKER, JR. Director
Howard H. Baker, Jr.
/S/H. JESSE ARNELLE Director
H. Jesse Arnelle
/S/THOMAS C. HAU Vice President and Principal
Thomas C. Hau Accounting Officer
/S/JAMES E. KOENIG Senior Vice President, Treasurer and
James E. Koenig Principal Financial Officer
</TABLE>
II-3
<PAGE>
WMX TECHNOLOGIES, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
NUMBER AND DESCRIPTION OF EXHIBIT
---------------------------------------------------------------------------------------------------------
<S> <C>
1(a) Form of proposed Underwriting Agreement -- Basic Provisions, including Terms Agreement (incorporated by
reference to Exhibit 1 to registrant's registration statement on Form S-3, Registration No. 33-30190)
1(b) Form of proposed Distribution Agreement (incorporated by reference to Exhibit 1(b) to registrant's
registration statement on Form S-3, Registration No. 33-38746)
2 None
4(a) Indenture dated as of June 1, 1993 between the Company and The Fuji Bank and Trust Company, as Trustee
(incorporated by reference to Exhibit 4 to registrant's Form 8-K Current Report dated July 15, 1993,
registrant file no. 1-7327)
4(b) Form of Fixed Rate Note (incorporated by reference to Exhibit 4(b) to registrant's Form 8-K Current
Report dated December 12, 1990, registrant file no. 1-7327)
4(c) Form of Debenture (incorporated by reference to Exhibit 4(c) to registrant's registration statement on
Form S-3, Registration No. 33-30190)
5 Opinion of Herbert A. Getz, Vice President, General Counsel and Secretary, including consent
12 Computation of Ratio of Earnings to Fixed Charges for the years ended December 31, 1989, 1990, 1991, 1992
and 1993 (incorporated by reference to Exhibit 12 to registrant's Annual Report on Form 10-K for the year
ended December 31, 1993, registrant file no. 1-7327)
15 None
23(a) Consent of Herbert A. Getz, Vice President, General Counsel and Secretary (included in Exhibit 5)
23(b) Consent of Independent Public Accountants
25 Statement of Eligibility of Trustee on Form T-1
26 None
27 None
28 None
</TABLE>
<PAGE>
<TABLE>
<S> <C>
A EXHIBIT 5
April 4, 1994
</TABLE>
WMX Technologies, Inc.
3003 Butterfield Road
Oak Brook, Illinois 60521
Ladies and Gentlemen:
$1,000,000,000 aggregate purchase price
_____of debt securities_____
In my capacity as General Counsel of WMX Technologies, Inc., a Delaware
corporation (the "Company"), I have represented the Company in connection with
the registration under the Securities Act of 1933 of $1,000,000,000 aggregate
principal amount of the Company's debt securities (the "Securities") to be
issued in one or more series under an indenture dated as of June 1, 1993 (the
"Indenture"), between the Company and The Fuji Bank and Trust Company, as
trustee, and to be registered with the Securities and Exchange Commission (the
"Commission") by the filing of a registration statement on Form S-3 (the
"Registration Statement").
In this connection, I have examined originals, or copies certified or
otherwise identified to my satisfaction, of such documents, corporate and other
records, certificates and other papers as I have deemed it necessary to examine
for the purpose of this opinion.
Based on such examination, it is my opinion that:
1. The Company is a corporation duly organized and validly existing in
good standing under the laws of the State of Delaware.
2. Upon issuance of Securities in accordance with the Indenture and the
sale of such Securities as described in the prospectus and the applicable
prospectus supplement, the Securities will be legally issued and will
constitute the valid and binding obligations of the Company in accordance
with their terms and the terms of the Indenture and the related board
resolution, except as enforcement may be limited by bankruptcy, insolvency
or other laws generally affecting the enforcement of creditors' rights, and
by general principles of equity.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above, and to the reference made to me in the
Registration Statement under the caption "Legal Opinions." In giving this
consent, I do not admit that I am within the category of persons whose consent
is required by section 7 of the Securities Act of 1933.
Very truly yours,
/s/ HERBERT A. GETZ
Herbert A. Getz
General Counsel
WMX Technologies, Inc.
/lsl.2
708/572-8800 - Telex: 253094 - TWX: 910-631-0029
<PAGE>
EXHIBIT 23(B)
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 16, 1994
included (or incorporated by reference) in the WMX Technologies, Inc. Form 10-K
for the year ended December 31, 1993 and to all references to our firm included
in this Registration Statement.
/s/ ARTHUR ANDERSEN & CO.
ARTHUR ANDERSEN & CO.
Chicago, Illinois
April 4, 1994
<PAGE>
Registration No.
_______________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________________________
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a trustee pursuant to
Section 305(b) (2) _____
_______________________________________
THE FUJI BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
New York 13-2794155
(State of incorporation (I.R.S. employer
if not a national bank) identification no.)
Two World Trade Center
New York, New York 10048
(Address of principal executive offices) (Zip Code)
_______________________________________
WMX TECHNOLOGIES, INC.
(Exact name of obligor as specified in its charter)
DELAWARE
(State of other jurisdiction of
incorporation or organization)
36-2660763
(I.R.S. employer identification no.)
3003 Butterfield Road
Oak Brook, Illinois 60521
(Address of principal executive offices) (Zip Code)
_______________________________________
DEBT SECURITIES
(Title of the Indenture Securities)
_______________________________________
<PAGE>
Item 1. GENERAL INFORMATION
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York Banking Department, Albany, New York.
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS.
If the obligor or any underwriter for the obligor is an affiliate
of the Trustee, describe each such affiliation.
None.
Item 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this statement of
eligibility and qualification.
Exhibit 1 - Copy of Organization Certificate of
the trustee as now in effect.
Exhibit 2 - Copy of certificate of authority of the
Trustee to commence business.
Exhibit 3 - Copy of authorization of the Trustee to
exercise trust powers.
Exhibit 4 - Copy of existing By-Laws of the Trustee
Exhibit 5 - Not Applicable.
Exhibit 6 - The consent of the Trustee required by
Section 321 (b) of the Trust Indenture Act of 1939.
Exhibit 7 - Copy of the latest Report of Condition
of the Trustee as of December 31, 1992.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-------------------------------------------------
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
The Fuji Bank and Trust Company, has duly cause this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all
in The City of New York and State of New York, on the 1st day of April 1994.
/s/Andrew H. Sawyer
_______________________________
Andrew H. Sawyer
Vice President
<PAGE>
EXHIBIT 1
ORGANIZATION CERTIFICATE
OF
THE FUJI BANK AND TRUST COMPANY
"----------------------------------------------------------------------"
We, the undersigned all being of full age, FOUR of us being citizens of the
United States and THREE of us being residents of the State of New York, having
associated ourselves together for the purpose of forming a TRUST COMPANY under
and pursuant to the Banking Law of the State of New York, do hereby certify:
FIRST. That the name by which the corporation is to be known is
THE FUJI BANK AND TRUST COMPANY
SECOND. That the place where its principal office is to be located is ONE
WORLD TRADE CENTER, BOROUGH OF MANHATTAN, CITY AND STATE OF NEW YORK
THIRD. That the amount of its capital stock is to be TEN MILLION dollars
($10,000,000) INTO 100,000 SHARES of the par value of $100 per share. No holder
or any such shares shall be entitled to any preemptive right within the meaning
of Section 6021 of the Banking Law.
<PAGE>
SEVENTH. The corporation is to exercise the powers conferred by Section 100
of the Banking Law.
IN WITNESS WHEREOF, We have made, signed and acknowledged this certificate in
duplicate, this 11th day of June, 1974.
A. HALSEY COOK
JOSPEH A. DOYLE
C. BEDFORD JOHNSON
TANEHIKO KAMIURA
YASUJI MORI
YOSHIO NAKAYAMA
JIRO NOZAKI
PAUL E. WALLENDORF
STATE OF NEW YORK
County of NEW YORK ss.:
On this 11th day of June 1974 personally appeared before me
A. HALSEY COOK
JOSEPH A. DOYLE
C. BEDFORD JOHNSON
TANEHIKO KAMIURA
YASUJI MORI
YOSHIO NAKAVAMA
JIRO NOZAKI
PAUL E. WALLENDORF
to me known to be the persons described in and who executed the foregoing
certificate, and severally acknowledged that they executed the same
-----------------------------------------
<PAGE>
[LOGO] STATE OF NEW YORK EXHIBIT 2
BANKING DEPARTMENT
KNOW ALL MEN BY THESE PRESENTS, WHEREAS, THE ORGANIZATION CERTIFICATE OF THE
FUJI BANK AND TRUST COMPANY OF NEW YORK, NEW YORK HAS HERETOFORE BEEN DULY
APPROVED AND SAID THE FUJI BANK AND TRUST COMPANY, HAS COMPLIED WITH THE
PROVISIONS OF CHAPTER 2 OF THE CONSOLIDATED LAWS,
NOW THEREFORE, I, HARRY W. ALBRIGHT, JR., AS SUPERINTENDENT OF BANKS OF THE
STATE OF NEW YORK, DO HEREBY AUTHORIZE THE SAID THE FUJI BANK AND TRUST COMPANY
TO TRANSACT THE BUSINESS OF A TRUST COMPANY AT ONE WORLD TRADE CENTER, BOROUGH
OF MANHATTAN, CITY OF NEW YORK WITHIN THIS STATE.
[SEAL] IN WITNESS THEREOF, I HAVE HEREUNTO SET MY HAND
AND AFFIXED THE OFFICIAL SEAL OF THE BANKING
DEPARTMENT AT ALBANY, THIS 29TH DAY OF NOVEMBER IN
THE YEAR OF OUR LORD ONE THOUSAND NINE HUNDRED AND
SEVENTY-FOUR.
<PAGE>
[LOGO] STATE OF NEW YORK EXHIBIT 3
BANKING DEPARTMENT
KNOW ALL MEN BY THESE PRESENTS, WHEREAS, THE ORGANIZATION CERTIFICATE OF THE
FUJI BANK AND TRUST COMPANY OF NEW YORK, NEW YORK HAS HERETOFORE BEEN DULY
APPROVED AND SAID THE FUJI BANK AND TRUST COMPANY, HAS COMPLIED WITH THE
PROVISIONS OF CHAPTER 2 OF THE CONSOLIDATED LAWS,
NOW THEREFORE, I, HARRY W. ALBRIGHT, JR., AS SUPERINTENDENT OF BANKS OF THE
STATE OF NEW YORK, DO HEREBY AUTHORIZE THE SAID THE FUJI BANK AND TRUST COMPANY
TO TRANSACT THE BUSINESS OF A TRUST COMPANY AT ONE WORLD TRADE CENTER, BOROUGH
OF MANHATTAN, CITY OF NEW YORK WITHIN THIS STATE.
[SEAL] IN WITNESS THEREOF, I HAVE HEREUNTO SET MY HAND
AND AFFIXED THE OFFICIAL SEAL OF THE BANKING
DEPARTMENT AT ALBANY, THIS 29TH DAY OF NOVEMBER IN
THE YEAR OF OUR LORD ONE THOUSAND NINE HUNDRED AND
SEVENTY-FOUR
<PAGE>
BY-LAWS
OF
THE FUJI BANK AND TRUST COMPANY
(LOGO)
EFFECTIVE NOVEMBER 20, 1974 AS AMENDED MAY 17, 1988
<PAGE>
CONTENTS
I Meetings of Stockholders
Section 1.01. Annual Meetings.
Section 1.02. Special Meetings.
Section 1.03. Place of Annual Meetings.
Section 1.04. Place of Special Meetings.
Section 1.05. Notice of Meetings.
Section 1.06. Waiver of Notice.
Section 1.07. Quorum and Adjournment.
Section 1.08. Vote of Stockholders.
Section 1.09. Proxies.
Section 1.10. Written Consents.
II Determination of Voting, Dividend and Other Rights
Section 2.01. Record Date Fixed by Board.
Section 2.02. Record Date in Other Cases.
III Directors
Section 3.01. Number, Qualifications and Term of Office.
Section 3.02. Election.
Section 3.03. Annual Meetings.
Section 3.04. Regular Meetings.
Section 3.05. Special Meetings.
Section 3.06. Place of Meetings.
Section 3.07. Notice of Meetings.
Section 3.08. Quorum and Manner of Acting.
Section 3.09. Directors' Fees.
Section 3.10. Removal of Directors.
Section 3.11. Resignations.
Section 3.12. Vacancies.
<PAGE>
IV Committees
Section 4.01. Executive Committee.
Section 4.02. Examining Committee.
Section 4.03. Credit Committee.
Section 4.04. Trust Committee.
Section 4.05. Other Committees.
V Officers and Employees
Section 5.01. Officers.
Section 5.02. Bonds.
Section 5.03. The President.
Section 5.04. The Executive Vice President.
Section 5.05. The Secretary.
Section 5.06. The Comptroller.
Section 5.07. The Auditor.
Section 5.08. Other Officers.
Section 5.09. Fiduciary Signatures.
Section 5.10. Other Signatures.
VI Indemnification
VII Seal
VIII Capital Stock
Section 8.01. Certificates.
Section 8.02. Transfers of Shares; Lost Certificates.
Section 8.03. Registered Stockholders.
IX Amendments
<PAGE>
EXHIBIT 4
BY-LAWS
OF
THE FUJI BANK AND TRUST COMPANY
____________
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1.01 Annual Meetings. The annual meetings of stockholders
shall be held on such date and at such time in March of each year as may be
fixed from time to time by the Board of Directors for the election of directors
and the transaction of such other business as may properly come before the
meeting.
SECTION 1.02. Special Meetings. A special meeting of the
stockholders may be called at any time and for any purpose or purposes by (i)
the President, (ii) the Board of Directors, (iii) the Secretary upon written
request of the holders of record of at least one-half of the outstanding shares,
or (iv) the holders of record of at least one-half of the outstanding shares.
Every request by stockholders to the Secretary referred to in clause (iii) above
shall state the purpose or purposes of the meeting. The stockholders calling a
meeting in accordance with clause (iv) above shall forward notice thereof to the
Secretary.
SECTION 1.03. Place of Annual Meetings. Annual meetings of the
stockholders shall be held at such place within the Borough of Manhattan, City
and State of New York, as may be fixed from time to time by the Board of
Directors and stated in the notice of the meeting or in a duly executed waiver
of notice thereof, or, if not so fixed, at the main office of the Company within
said Borough of Manhattan.
<PAGE>
SECTION 1.04. Place of Special Meetings. Special meetings of the
stockholders shall be held at such place within or without the State of New York
as may be fixed by the person or persons calling the meeting and stated in the
notice of the meeting or in a duly executed waiver of notice thereof, or if not
so fixed, at the main office of the Company within said Borough of Manhattan.
SECTION 1.05. Notice of Meetings. Except when otherwise permitted by
statute, a written notice of the place, date and hour of each meeting, whether
annual or special, shall be given personally or by mail to each stockholder
entitled to vote thereat, not less than 10 nor more than 50 days prior to the
meeting. The notice of any special meeting shall also state the purpose or
purposes for which the meeting is called and that it is being issued by or at
the direction of the person or persons calling the meeting. If such notice is
mailed, it is given when deposited in the United States mail with postage
thereon prepaid, directed to the stockholder at his address as it appears on the
record of stockholders, or, if he shall have filed with the Secretary a written
request that notices to him be mailed to some other address, then directed to
him at such other address.
SECTION 1.06. Waiver of Notice. Notice of meeting need not be given
to any stockholder who submits a waiver of notice, signed in person or by proxy,
whether before or after the meeting. The attendance of any stockholder at a
meeting, in person or by proxy, without protesting prior to the conclusion of
the meeting the lack of notice of such meeting, shall constitute a waiver of
notice by him.
SECTION 1.07. Quorum and Adjournment. At all meetings of
stockholders, except as otherwise provided by statute or the Organization
Certificate, the holders of a majority of the shares entitled to vote thereat,
present in person or by proxy, shall be requisite for and shall constitute a
quorum for the transaction of business. When a quorum is once present to
organize a meeting, it is not broken by the subsequent withdrawal of any
stockholder.
In the absence of a quorum, the stockholders present may adjourn the
meeting from time to time. At any such adjourned meeting at which a quorum
shall be present, any business may be transacted which might have been
transacted at the meeting originally called. No notice of any adjourned meeting
need be given if the time and place to which the meeting is adjourned are
announced at the meeting at which the adjournment is taken. However, if, after
the adjournment, the Board of Directors shall fix a new record date for the
adjourned meeting, notice of
<PAGE>
the adjourned meeting shall be given to each stockholder of record on the new
record date entitled to notice as specified in these By-Laws.
SECTION 1.08. Vote of Stockholders. Each stockholder of record shall
be entitled at every meeting of stockholders to one vote for every share
standing in his name on the record of stockholders. Directors shall be elected
as hereafter provided and whenever any other corporate action is to be taken by
vote of the stockholders, it shall, except as otherwise required by statute or
by the Organization Certificate, be authorized by a majority of the votes cast
at a meeting of stockholders by the holders of shares entitled to vote thereon.
SECTION 1.09. Proxies. Every stockholder entitled to vote at a
meeting of stockholders or to express consent or dissent without a meeting may
authorize another person or persons to act for him by proxy. Every proxy must
be in writing and signed by the stockholder or his attorney-in-fact. No proxy
shall be valid after the expiration of 11 months from the date thereof unless
otherwise provided in the proxy. Every proxy shall be revocable at the pleasure
of the stockholder executing it, except as otherwise provided by law. No
director, officer, clerk, teller, or bookkeeper of the Company shall act as
proxy at a meeting of stockholders.
SECTION 1.10. Written Consents. Whenever by law stockholders are
required or permitted to take any action by vote, such action may be taken on
written consent without a meeting, setting forth the action so taken, signed in
person or by proxy by the holders of all outstanding shares entitled to vote
thereon.
ARTICLE II
DETERMINATION OF VOTING, DIVIDEND AND OTHER RIGHTS
SECTION 2.01. Record Date Fixed by Board. For the purpose of
determining the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to or dissent
from any proposal without a meeting, or for the purpose of determining
stockholders entitled to receive payment of any dividend or the allotment of any
rights, or for the purpose of any other action, the Board of Directors may fix,
in advance, a date as the record date for any such determination of
stockholders. Such date shall not be more than 50 nor less than 10 days before
the date of any such meeting, nor more than 50 days
<PAGE>
prior to any other action. Whenever a determination of stockholders of record
entitled to notice of or to vote at any meeting of stockholders has been made,
such determination shall apply to any adjournment thereof unless the Board of
Directors shall fix a new record date for the adjourned meeting.
SECTION 2.02. Record Date in Other Cases. If no record date is
otherwise fixed in these By-Laws or by the Board of Directors pursuant to these
By-Laws, the record date for the determination of stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if no
notice is given, the day the meeting is held, and the record date for
determining stockholders for any other purpose shall be at the close of business
on the day on which the resolution of the Board of Directors relating thereto is
adopted.
ARTICLE III
DIRECTORS
SECTION 3.01. Number, Qualification and Term of Office. The number
of directors, each of whom shall be qualified as required by law or by the
Organization Certificate, constituting the entire Board shall not be less than
the minimum number and not more than the maximum number prescribed in the
Organization Certificate. The number of directors shall be determined and the
number so determined may be changed within such minimum and maximum limitations
from time to time by the holders of record of a majority of the outstanding
shares. At each annual meeting of stockholders, each of the directors shall be
elected by the stockholders to hold office, unless sooner removed or
disqualified, until the next annual meeting of stockholders and until his
successor has been elected and qualified.
SECTION 3.02. Election. At each meeting of the stockholders for the
election of directors, at which a quorum is present, the persons receiving a
plurality of the votes cast by the holders of shares entitled to vote in the
elections shall be elected as directors.
SECTION 3.03. Annual Meetings. Upon due qualification a newly
elected Board of Directors shall meet once each year to organize, to designate
one of its members as chairman of the Board of Directors to preside at all
meetings thereof and of the stockholders and to elect officers. Unless such
annual meeting shall be held on the day fixed for the annual
<PAGE>
meeting of stockholders and as soon as practicable after the time and at the
place fixed for such stockholder meeting, it may be held at such place, within
or without the State of New York, and at such time, which shall be within 15
days after the annual meeting of stockholders, as shall be determined by the
Board of Directors, the President, or the stockholders. Any business may be
transacted at such meeting which could have been transacted at a regular meeting
of the Board of Directors. The annual meeting of the Board of Directors shall
constitute the regular meeting of the Board of Directors for the month in which
it is held unless a regular meeting of the Board of Directors has already been
held in that month.
SECTION 3.04. Regular Meetings. Regular meetings of the Board of
Directors shall be held at least once in each month at such time as shall from
time to time be determined by the Board of Directors. In case the day so
determined shall be a legal holiday, such meeting shall be held on the next
succeeding day, not a legal holiday, at the same hour.
SECTION 3.05. Special Meetings. Special meetings of the Board of
Directors shall be held whenever called by the Board of Directors or the
President. Unless limited by statute, the Organization Certificate, these
By-Laws, or the terms of the notice thereof, any and all business may be
transacted at any special meeting.
SECTION 3.06. Place of Meetings. Meetings of the Board of Directors,
regular or special, shall be held at any place within or without the State of
New York, as may from time to time be determined by the Board of Directors
unless, if a special meeting, the person or persons by whom the meeting has been
called have designated another place in the notice of the meeting, in which case
such meeting shall be held at the place so designated. Annual meetings of the
Board of Directors shall be held at the place specified in Section 3.03 of these
By-Laws.
SECTION 3.07. Notice of Meetings. Notice of any special meeting and
of any annual meeting which does not take place on the day fixed for the annual
meeting of stockholders and as soon as practicable after the time and at the
place fixed for such stockholder meeting shall be mailed to each director,
addressed to him at his residence or usual place of business, not later than the
third day before the day on which the meeting is to be held, or shall be sent to
him at such place by telegraph, or be delivered personally or by telephone, not
later than the day before the day on which such meeting is to be held. Such
notice shall state the place, date and hour of the meeting. No notice need be
given of regular meetings and
<PAGE>
of annual meetings held on the day fixed for the annual meeting of stockholders
and as soon as practicable after the time and at the place fixed for such
stockholder meeting.
Notice of any meeting of the Board of Directors need not be given to
any director who submits a signed waiver of notice before or after the meeting,
or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to him.
SECTION 3.08. Quorum and Manner of Acting. A majority of the
directors in office at the time of any regular, annual or special meeting of the
Board of Directors, but not less than five nor less than one-third of the entire
Board, must be present in person to constitute a quorum for the transaction of
all business. Except as otherwise provided by statute or the Organization
Certificate, the vote of a majority of the directors present at the time of the
vote, if a quorum is present at such time, shall be the act of the Board of
Directors. A majority of the directors present, whether or not a quorum is
present, may adjourn any meeting to another time and place. Notice of the
adjourned meeting shall be given in accordance with Section 3.07 of these
By-Laws.
SECTION 3.09. Directors' Fees. In consideration of his serving in
such capacity, each director of the Company, other than directors who are
officers of the Company or of any company affiliated with it, shall be entitled
to receive an annual fee in such amount and payable in such installments as the
Board of Directors may from time to time determine. The Board of Directors
shall also have authority to determine, from time to time, the amount of
compensation which shall be paid to its members, other than those who are
officers of the Company or of any company affiliated with it, for attendance at
meetings of the Board of Directors or of any committee of the Board of
Directors, as well as to any directors rendering special services to the
Company.
SECTION 3.10. Removal of Directors. Any director may be removed with
or without cause by the stockholders.
SECTION 3.11. Resignations. Any director may resign at any time by
giving written notice to the Board of Directors, the President or the Secretary
of the Company. Such resignation shall take effect at the time specified therein
or, if not so specified, upon receipt by the Board of Directors, the President
or the Secretary of the Company. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
<PAGE>
SECTION 3.12. Vacancies. All vacancies occurring in the Board of
Directors, including those occurring by reason of newly created directorships
resulting from an increase in the number of directors, shall be filled by
election by the stockholders. Any director elected to fill a vacancy shall hold
office for the unexpired term of his predecessor.
ARTICLE IV
COMMITTEES
SECTION 4.01. Executive Committee. The Board of Directors may, by
resolution adopted by a majority of the entire Board, designate from among its
members an Executive Committee consisting of at least five directors, one of
whom shall be designated by the Board of Directors as chairman of the Executive
Committee, and may designate one or more additional directors as alternate
members of the Executive Committee, who may replace any absent member or members
at any meeting thereof, all of such members to serve at the pleasure of the
Board of Directors. The Executive Committee may adopt its own rules of
procedure and shall hold special meetings upon the request of any member
thereof. No notice of any meetings of the Executive Committee shall be
required, and three members thereof shall constitute a quorum. All acts done
and powers conferred by the Executive Committee from time to time shall be
deemed to be, and may be certified as being, done or conferred under authority
of the Board of Directors, and shall be reported at the next regular meeting of
the Board of Directors. The Executive Committee shall have and may exercise all
powers of the Board of Directors that may be lawfully delegated, but shall not
have authority as to the following matters:
(1) the submission to stockholders of any action that needs stockholders'
authorization by law;
(2) the filling of vacancies in the Board of Directors or in any committee of
the Board of Directors;
(3) the fixing of compensation of the directors for serving on the Board of
Directors or on any committee of the Board of Directors;
(4) the amendment or repeal of the By-Laws of the Company, or the adoption of
new By-Laws for the Company;
(5) the amendment or repeal of any resolution of the Board of Directors which
by its terms shall not be so amendable or repealable; and
(6) the taking of action which is expressly required by any provision of law to
be taken at a meeting of the Board of Directors or by a specified
proportion of the directors.
<PAGE>
SECTION 4.02. Examining Committee. The Board of Directors shall, at
its first meeting after these By-Laws are adopted and at each of its annual
meetings, by resolution adopted by a majority of the entire Board, designate
from among its members an Examining Committee consisting of at least three
directors who are not also officers of the Company, one of whom shall be
designated by the Board of Directors as the chairman of the Examining Committee.
The Examining Committee shall conduct the annual directors' examination of the
Company as required by the New York State Banking Law, shall review the reports
of all examinations made of the Company by public authorities and report thereon
to the Board of Directors, and shall report to the Board of Directors such other
matters as it deems advisable with respect to the Company and the conduct of its
operations. In the performance of its duties, the Examining Committee may
employ or retain, from time to time, expert assistance independent of the
officers or personnel of the Company, to make such studies of the Company's
assets, liabilities and accounting and auditing methods, systems and controls as
the Examining Committee may request in order to determine that the operations of
the Company are being audited in such a manner as to provide prudent and
adequate protection. The Examining Committee may direct the Auditor of the
Company to make such investigations as it deems necessary or advisable with
respect to the Company and the conduct of its operations. The Examining
Committee shall adopt its own rules of procedure and shall hold regular
quarterly meetings, and at all other times shall meet on call of the chairman of
the Examining Committee.
SECTION 4.03. Credit Committee. The Board of Directors may, by
resolution adopted by a majority of the entire Board, designate from among its
members a Credit Committee consisting of at least three directors, one of whom
shall be designated by the Board of Directors as chairman of the Credit
Committee, and may designate one or more additional directors as alternate
members of the Credit Committee, who may replace any absent member or members at
any meeting thereof, all of such members to serve at the pleasure of the Board
of Directors. The Credit Committee may adopt its own rules of procedure and
shall hold special meetings upon the request of any member thereof. No notice
of any meetings of the Credit Committee shall be required, and two members
thereof shall constitute a quorum. All acts done and powers conferred by the
Credit Committee from time to time shall be deemed to be and may be certified as
being, done or conferred under authority of the Board of Directors, and shall be
reported at the next regular meeting of the Board of Directors. The Credit
Committee shall have the authority to:
<PAGE>
(1) review credit applications, credit proposals, credit summaries, and any
related loan documents and determine, in accordance with the Company's Credit
Policy, whether the Company should make, or commit to make, an extension of
credit or modify an extension of credit, when the approval of the Board of
Directors, Executive Committee, or Credit Committee is required by the Company's
Credit Policy;
(2) take any or all actions and authorize any officer of the Company to take
any or all actions which may be necessary or advisable regarding any extension
of credit; and
(3) exercise all other powers and functions in the management of the Company as
may be provided by the Board of Directors and as may be permitted by law.
SECTION 4.04 Trust Committee. The Board of Directors may, by
resolution adopted by a majority of the entire Board, designate from among its
members a Trust Committee consisting of at least three directors, one of whom
shall be designated by the Board of Directors as chairman of the Trust
Committee, and may designate one or more additional directors as alternate
members of the Trust Committee, who may replace any absent member or members at
any meeting thereof, all of such members to serve at the pleasure of the Board
of Directors. The Trust Committee may adopt its own rules of procedure and
shall hold special meetings upon the request of any member thereof. No notice
of any meetings of the Trust Committee shall be required, and two members
thereof shall constitute a quorum. All acts done and powers conferred by the
Trust Committee from time to time shall be deemed to be, and may be certified as
being, done or conferred under authority of the Board of Directors, and shall be
reported at the next regular meeting of the Board of Directors. The Trust
Committee shall have the authority to:
(1) determine, in accordance with the Company's Trust Principles, whether the
Company should accept or terminate a position as trustee, executor,
administrator, registrar, fiscal or fiduciary capacity, which the Company is
permitted to accept by law;
(2) take any or all actions and authorize any officer of the Company to take
any or all actions which may be necessary or advisable regarding any fiduciary
capacity; and
<PAGE>
(3) exercise all other powers and functions in the management of the Company as
may be provided by the Board of Directors and as may be permitted by law.
SECTION 4.05. Other Committees. The Board of Directors shall have
the power to appoint or provide for from time to time any such other committees
consisting of such directors, officers or other persons and having such powers
and functions in the management of the Company as may be provided by the Board
of Directors and as may be permitted by the law, and from time to time to
suspend or discontinue the powers and duties of such committees. If the members
of any such committee consist of directors, the resolution of the Board of
Directors designating such members shall be adopted by a majority of the entire
Board and such committee shall consist of three or more directors.
ARTICLE V
OFFICERS AND EMPLOYEES
SECTION 5.01. Officers. The Board of Directors shall, at its first
meeting after these By-Laws are adopted and at each of its annual meetings,
elect from their number a President and shall elect one or more Executive Vice
Presidents, a Secretary and a Comptroller, and may elect an Auditor, each of
whom shall hold office until his successor is elected and shall have qualified.
Any officer elected by the Board of Directors may be removed by the Board of
Directors, or his authority suspended by it, with or without cause. Any vacancy
occurring in any office of any officer referred to in this paragraph may be
filled by the Board of Directors from time to time.
The President may appoint one or more Senior Vice Presidents, one or
more Vice Presidents, one or more Assistant Vice Presidents, one or more
Assistant Treasurers, one or more Assistant Secretaries and such other officers
(other than officers referred to in the first paragraph of this Section) as he
may deem fit.
The compensation of officers elected by the Board of Directors
pursuant to these By-Laws shall be fixed by the Board of Directors. The
compensation of officers appointed by the President pursuant to these By-Laws
shall be fixed by the President.
All other agents and employees of the Company shall be
<PAGE>
appointed, their duties prescribed and their compensation fixed by the
President, or any officer authorized to do so by him.
SECTION 5.02. Bonds. Any of the officers or employees of the Company
may be required to give such bond for the faithful performance of his duties as
the Board of Directors may determine.
SECTION 5.03. The President. The President shall have general
supervision of the policies and operations of the Company on behalf of the Board
of Directors and shall be the chief executive officer of the Company. He shall
manage and administer the Company's operations and perform all duties and
exercise all powers incident to the office of the President and shall perform
such further duties and exercise such further powers as may be assigned to him
from time to time by the Board of Directors. In the absence of the director
designated as chairman of the Board of Directors, the President shall preside at
meetings of the stockholders and at meetings of the Board of Directors. He
shall have the power to sign checks, orders, contracts, leases, notes, drafts
and other documents and instruments in connection with the business of the
Company, and together with the Secretary or an Assistant Secretary conveyances
of real estate and other documents and instruments to which the seal of the
Company is affixed. No person shall hold the offices of both President and
Secretary.
SECTION 5.04. The Senior Executive Vice President and Executive Vice
President. The Senior Executive Vice President shall perform such duties and
exercise such powers as may be assigned to him from time to time aby the Board
of Directors or the President The Executive Vice President. The Executive Vice
President, or each of them, shall participate in the supervision of the policies
and operations of the Company, and shall perform such further duties and
exercise such further powers as may be assigned to him from time to time by the
Board of Directors or the President. In the absence of the President,his duties
shall be performed and his powers shall be exercised by the Executive Vice
President or, if there be more than one, then by such Executive Vice President
as shall be designated by the President or, failing such designation, by the
Executive Vice Presidents in the order in which they were elected at the most
recent election of officers. Each Executive Vice President shall have the power
to sign for the Company to the extent authorized by the Board of Directors.
SECTION 5.05. The Secretary. The Secretary shall attend all meetings
of the Board of Directors and the stockholders and shall record the minutes of
all proceedings in a book to be kept for that purpose
<PAGE>
and shall, when requested, perform like duties for all committees of the Board
of Directors. He shall attend to the giving of notice of meetings of
stockholders and meetings of the Board of Directors and committees thereof if
such notice is required pursuant to these By-Laws or the rules of procedure of
any such committee, he shall have custody of the corporate seal and shall have
authority to affix the same to any instrument and to attest the same. He shall
keep and account for all books, documents, papers and records of the Company,
except those for which some other officer or agent is properly accountable. He
shall have authority to sign stock certificates, and shall generally perform
such duties and exercise such powers usually pertaining to the office of
secretary of a corporation. He shall perform such further duties and exercise
such further powers as may be assigned to him from time to time by the Board of
Directors or the President. In the absence of the Secretary, such person as
shall be designated by the President shall perform his duties and exercise his
powers. No person may hold the offices of both Secretary and President.
SECTION 5.06. The Comptroller. The Comptroller shall be the chief
accounting officer of the Company. He shall exercise general supervision over,
and be responsible for, the operation of all matters pertaining to the
accounting and bookkeeping of the Company. He shall render reports from time to
time relating to the general financial condition and internal operation of the
Company. He shall render such other reports as may be required and perform such
further duties and exercise such further powers as may be assigned to him from
time to time by the Board of Directors or the President. In the absence of the
Comptroller, such person as shall be designated by the President shall perform
his duties and exercise his powers.
SECTION 5.07. The Auditor. The Auditor shall be the chief auditing
officer of the Company. He shall exercise general supervision over, and be
responsible for, the operation of all matters pertaining to the auditing of the
Company. He shall continuously examine the affairs of the Company and shall
report to the Board of Directors and the Examining Committee, and shall render
from time to time to the Board of Directors and the Examining Committee audit
statements and reports relating to the general financial condition and internal
operation of the Company as may be requested of him and such other statements
and reports as in his judgment are necessary in the performance of the duties
incident to the office of Auditor. He shall render such other reports as may be
required and perform such further duties and exercise such further powers as may
be assigned to him from time to by the Board of Directors or the President. If
the Board of Directors shall not have elected an Auditor, the Comptroller shall
perform his duties and exercise his powers.
<PAGE>
If an Auditor shall have been elected, in his absence such person as shall be
designated by the President shall perform his duties and exercise his powers.
SECTION 5.08. Other Officers. The Senior Vice Presidents, Vice
Presidents, Assistant Vice Presidents, Assistant Treasurers, Assistant
Secretaries and all other officers appointed by the President pursuant to these
By-Laws shall perform such duties and exercise such powers as pertain to their
respective offices or as may be assigned to them from time to time by the
President, except that said officers shall have signing powers only as set forth
in Sections 5.09 and 5.10 of these By-Laws.
SECTION 5.09. Fiduciary Signatures. All instruments executed by the
Company as trustee, executor, administrator, registrar, transfer agent,
depositary, agent or in any other fiduciary capacity, including agreements,
indentures, mortgages, deeds, conveyances, satisfactions, releases, assignments,
transfers, participation certificates, powers of attorney, proxies, petitions,
proofs of claim and all other documents and writings in connection with any
fiduciary capacity, may be executed by the President or any other person
thereunto authorized by the Board of Directors. Any officer or person
authorized to execute any such instrument is also authorized to affix the seal
of the Company thereto and to cause the same to be attested by the Secretary or
an Assistant Secretary.
All authentications or certifications of the Company as trustee under
any mortgage, deed of trust, indenture or agreement securing or providing for
bonds, debentures or notes, and all certificates as registrar or transfer agent,
and all checks as disbursing agent, and all certificates of deposit, interim
certificates and trust receipts or certificates, may be executed by an officer
or person referred to in the first paragraph of this Section.
The provisions of this Section are in addition to and not in
substitution for the manner of execution of any instrument elsewhere provided in
these By-Laws.
SECTION 5.10. Other Signatures. All checks, orders, contracts,
leases, notes, drafts and other documents and instruments in connection with the
business of the Company shall be signed by the officers authorized in these
By-Laws to do so or by such other officers or by such employees and agents other
than officers as the Board of Directors shall authorize, and subject to such
restrictions as the Board of Directors shall
<PAGE>
prescribe. The Board of Directors may delegate to one or more officers of the
Company all or part of the authority to grant signing powers contained in this
Section.
ARTICLE VI
INDEMNIFICATION
The Company shall, to the extent specified herein, indemnify each person
made or threatened to be made a party to any civil or criminal action or
proceeding by reason of the fact that he, or his testator or intestate, is or
was a director, officer or employee of the Company or servedany other
corporation of any kind, domestic or foreign, in any capacity at the request of
the Company. Officers and directors of the Company shall be so indemnified to
the full extent permitted by law and persons other than officers and directors
of the Company shall be so indemnified to the same extent as officers and
directors of the Company.
ARTICLE VII
SEAL
The Company shall have a seal which shall be in such form as the Board
of Directors shall approve.
ARTICLE VIII
CAPITAL STOCK
SECTION 8.01. Certificates. All certificates of stock shall be
signed by the President and the Secretary, and shall bear the corporate seal.
The signatures and the seal may be facsimile, engraved or printed, to the extent
permitted by law.
SECTION 8.02. Transfer of Shares; Lost Certificates. Transfers of shares
shall be made on the books of the Company only by the person named in the
certificate, or by attorney lawfully constituted in writing, and upon surrender
and cancellation of a certificate or certificates
<PAGE>
for a like number of shares, with duly executed assignment and power of transfer
endorsed thereon or attached thereto, and with such proof of the authenticity of
the signatures as the Company or its agents may reasonably require. In the case
of loss or destruction of a certificate, a new certificate may be issued on such
terms as the Board of Directors may prescribe.
SECTION 8.03. Registered Stockholders. The Company shall be
protected in treating the persons in whose names shares stand on the record of
stockholders as the owners thereof for all purposes; and the Company shall not
be bound to recognize any claim to or interest in such shares on the part of any
other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by law.
ARTICLE IX
AMENDMENTS
These By-Laws may be amended, repealed or adopted by vote of the
holders of the shares at the time entitled to vote in the election of any
directors.
I, _______________________________, CERTIFY that: (1) I am the duly
constituted Secretary of The Fuji Bank and Trust Company, and as such officer am
the custodian of its records; (2) the foregoing By-Laws are the By-Laws of said
Bank, as now in full force and effect.
IN TESTIMONY WHEREOF, I have hereunto affixed my signature and the
seal of the said Bank, in the city of New York, on this day of ,
19 .
______________________________ Secretary
(SEAL)
<PAGE>
UNITED STATES OF AMERICA, )
STATE OF NEW YORK, ) ss.:
COUNTY OF NEW YORK. )
On this day of , 19 , before me personally appeared
_______________________, to me known, who signed in my presence the foregoing
certificate with respect to a copy of the By-Laws and who, being by me duly
sworn, did depose and say that he resides at, _______________________ that he is
the Secretary of The Fuji Bank and Trust Company, that he knows the corporate
seal of said Bank, that the seal affixed to said certificate is said seal, and
that he is duly authorized to sign said certificate and to affix said seal to
said certificate of said Bank.
<PAGE>
EXHIBIT 6
CONSENT OF TRUSTEE REQUIRED BY SECTION 321 (b)
OF THE TRUST INDENTURE ACT OF 1939
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, The Fuji Bank and Trust Company, consents, subject to the conditions
set forth in Section 321 (b) of said Act, that reports of examinations of the
Trustee by the Banking Department of the State of New York or by any Federal,
State Territorial or District authorities may be furnished by the said
authorities to the Securities and Exchange Commission, upon request thereof.
April 1, 1994
THE FUJI BANK AND TRUST COMPANY
By: /s/ Andrew H. Sawyer
_____________________________
Andrew H. Sawyer
Vice President
Attest: /s/ John P. McGurn
_______________________
John P. McGurn
Assistant Treasurer
<PAGE>
EXHIBIT 7
<TABLE>
<CAPTION>
CONSOLIDATED BALANCE SHEETS THE FUJI BANK AND TRUST COMPANY AND SUBSIDIARIES
DECEMBER 31, 1992 AND 1991 (IN THOUSANDS)
- ------------------------------------------------------------------------------------------------------------------------
ASSETS 1992 1991
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Cash and due from banks $ 30,692 55,847
Interest-bearing deposits with banks 85,000 12,012
Investment securities (market vaue of $155,870 in 1992 amd $186,707 in 1991) 149,230 180,995
Federal funds sold 295,000 90,000
- ---------------------------------------------------------------------------------------------------------------------------
Loans 1,938,312 1,961,710
Less allowance for credit losses 43,870 59,882
- ------------------------------------------------------------------------------------------------------------------------
Net loans 1,894,604 1,901,828
- -----------------------------------------------------------------------------------------------------------------------
Customers' liability on acceptances 7,112 5,532
Bank premises and equipment 4,114 3,195
Accrued interest receivable 24,560 19,945
Other assets 24,560 14,798
- ------------------------------------------------------------------------------------------------------------------------
$ 2,507,110 2,284,152
- ------------------------------------------------------------------------------------------------------------------------
LIABILITIES AND STOCKHOLDER'S EQUITY
- ------------------------------------------------------------------------------------------------------------------------
LIABILITIES
- ------------------------------------------------------------------------------------------------------------------------
Deposits:
Non-interest bearing: Domestic 123,030 137,183
Interest-bearing: Domestic 57,139 62,431
Interest-bearing: Foreign 1,062,200 854,249
- ------------------------------------------------------------------------------------------------------------------------
Total deposits 1,242,369 1,053,863
- ------------------------------------------------------------------------------------------------------------------------
Federal funds purchased 215,000 --
Other borrowed funds 630,793 838,999
Eurobonds issued 35,116 35,116
Acceptances outstanding 7,112 5,532
Accrued interest payable 24,874 20,617
Accrued taxes and other liabilities 4,539 1,760
- ------------------------------------------------------------------------------------------------------------------------
Liabilities before capital notes 2,159,803 1,955,887
Capital notes 100,000 100,000
- ------------------------------------------------------------------------------------------------------------------------
Total liabilities 2,259,803 2,055,887
- ------------------------------------------------------------------------------------------------------------------------
STOCKHOLDER'S EQUITY
- ------------------------------------------------------------------------------------------------------------------------
Captial stock of $100 par value per share. Authorized 1,000,000 shares;
984,742 shares issued and outstanding in 1992 and 1991 98,475 98,475
Paid-in surplus 153,975 153,975
Reserve for contingencies 500 500
(Accumulated deficit) (5,643) (24,685)
- ------------------------------------------------------------------------------------------------------------------------
Total stockholder's equity 247,307 228,265
- ------------------------------------------------------------------------------------------------------------------------
$ 2,507,110 2,284,152
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENT OF OPERATIONS THE FUJI BANK AND TRUST COMPANY AND SUBSIDIARIES
DECEMBER 31, 1992 AND 1991 (IN THOUSANDS)
- ------------------------------------------------------------------------------------------------------------------------
INTEREST INCOME: 1992 1991
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Interest and fees on loans $ 109,808 104,850
Interest-bearing deposits with banks 3,546 51,710
Interest on invstment securities 12,755 15,723
Interest on trading account securities -- 5,923
Interest on Federal funds sold 2,338 4,422
Total interest income 128,447 191,628
- ---------------------------------------------------------------------------------------------------------------------------
INTEREST EXPENSE:
- ------------------------------------------------------------------------------------------------------------------------
Interest on deposits 48,815 84,912
Interest on Federal funds purchased 2,923 4,763
Interest on Eurobonds issued 1,275 6,451
Interest on other borrowed funds 31,510 46,993
Interest on capital notes 4,503 6,965
- ------------------------------------------------------------------------------------------------------------------------
Total interest expense 89,026 150,084
- ------------------------------------------------------------------------------------------------------------------------
Net interest income 39,421 41,544
Provision for credit losses 2,000 30,000
- ------------------------------------------------------------------------------------------------------------------------
Net interest income after provision for credit losses 37,421 11,544
- ------------------------------------------------------------------------------------------------------------------------
Other operating income:
Service charges, fees and commissions 6,677 6,439
Trust fee income 6,118 5,983
Net gain from trading securities -- 95
Net foreign exchange gain 67 73
Other 947 530
- ------------------------------------------------------------------------------------------------------------------------
Total other operating income 13,950 13,926
- ------------------------------------------------------------------------------------------------------------------------
Other operating expenses:
Salaries, wages and employee benefits 14,353 12,502
Net occupancy expense 4,037 4,098
Other 9,046 8,638
- ------------------------------------------------------------------------------------------------------------------------
Total other operating expenses 27,436 25,238
- ------------------------------------------------------------------------------------------------------------------------
Income before income taxes and extraordinary item 23,935 232
Income tax expense 10,768 3,048
Income (loss) before extraordinary item 13,167 (2,816)
Extraordinary item-tax benefit from utilization of net operating loss 5,875 1,380
- ------------------------------------------------------------------------------------------------------------------------
Net income (loss) $ 19,042 (1,436)
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
NON-CONSOLIDATED BALANCE SHEET The Fuji Bank, Limited (Parent bank)
MARCH 31, 1993
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
ASSETS (Millions of Yen) (Thousands of U.S. Dollars)
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C>
Cash and due from banks Y 8,647,303 $ 75,193,939
Call loans 425,325 3,698,478
Commercial paper and other debt purchased 142,419 1,238,426
Trading account securities 412,276 3,585,009
Money held in trust 190,509 1,656,600
Securities 6,192,238 53,845,548
Loans and bills discounted 32,095,615 279,092,304
Foreign exchange 34,170 3,340,609
Other assets 1,255,806 10,920,052
Premises and equipment 309,042 2,687,322
Customers' liabilities for acceptances and guarantees 3,919,672 34,084,104
- ----------------------------------------------------------------------------------------------------------
Total assets Y 53,974,380 $ 469,342,435
- ----------------------------------------------------------------------------------------------------------
LIABILITIES AND STOCKHOLDERS' EQUITY
- ----------------------------------------------------------------------------------------------------------
LIABILITIES
- ----------------------------------------------------------------------------------------------------------
Deposits Y 39,179,227 $ 340,688,930
Call money 5,569,812 48,433,148
Borrowed money 1,721,026 14,965,443
Foreign exchange 44,100 383,478
Convertible bonds and notes 51,473 447,591
Other liabilities 1,124,180 9,775,478
Reserve for possible loan losses 435,417 3,786,235
Reserve for retirement allowances 47,443 412,548
Other reserves 15,286 132,922
Acceptances and guarantees 3,919,672 34,084,104
- ----------------------------------------------------------------------------------------------------------
Total liabilities 52,107,642 453,109,930
- ----------------------------------------------------------------------------------------------------------
STOCKHOLDERS' EQUITY
- ----------------------------------------------------------------------------------------------------------
Common stock 422,376 3,672,835
Capital surplus 313,243 2,723,852
Legal reserve 67,746 589,096
Voluntary reserve and special reserves 1,016,016 8,834,922
Unappropriated profit 47,354 411,774
- ----------------------------------------------------------------------------------------------------------
Total stockholders' equity 1,866,737 16,232,496
- ----------------------------------------------------------------------------------------------------------
Total liabilities and stockholders' equity Y 53,974,380 $ 469,342,435
- ----------------------------------------------------------------------------------------------------------
<FN>
Note: U.S. Dollar amounts are shown solely for convenience and calculated at the
rate of Y 115.00 to US $1, the prevailing rate on March 31, 1993. Amounts of
less than one million yen have been rounded down. As a result, the totals in yen
shown above in the financial statements do not necessarily agree with the
relevant sums of the individual amounts.
</TABLE>
