<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
The Western Company of North America
(Name of Issuer)
Common Stock, par value $.10 per share
(Title of Class of Securities)
958043 40 8
(CUSIP Number)
Marc Weitzen, Esq.
Gordon Altman Butowsky Weitzen Shalov & Wein
114 West 47th Street, 21st Floor
New York, New York 10036
(212) 626-0800
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
October 12, 1994
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this Schedule
13D, and is filing this schedule because of Rule 13d-1(b)(3) or
(4), check the following box //.
Check the following box if a fee is being paid with the statement
/x/. (A fee is not required only if the reporting person: (1) has
a previous statement on file reporting beneficial ownership of more
than five percent of the class of securities described in Item 1;
and (2) has filed no amendment subsequent thereto reporting
beneficial ownership of five percent or less of such class.) (See
Rule 13d-7).
NOTE: Six copies of this statement, including all exhibits, should
be filed with the Commission. See Rule 13d-1(a) for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a
prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("Act") or otherwise subject to the
liabilities of that section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 958043 40 8
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Chelonian Corp.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC, OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
295,800
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
295,800
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
295,800
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.6%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 958043 40 8
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Unicorn Associates Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
295,800
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
295,800
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
295,800
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.6%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 958043 40 8
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ACF Industries, Incorporated
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New Jersey
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
295,800
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
295,800
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
295,800
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.6%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 958043 40 8
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ACF Industries Holding Corp.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
295,800
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
295,800
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
295,800
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.6%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 958043 40 8
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Highcrest Investors Corp.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
295,800
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
295,800
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
295,800
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.6%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 958043 40 8
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Icahn Holding Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
295,800
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
295,800
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
295,800
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.6%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 958043 40 8
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Riverdale Investors Corp., Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO, AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
905,350
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
905,350
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
905,350
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.0%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 958043 40 8
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Carl C. Icahn
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
1,201,150
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
1,201,150
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,201,150
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.6%
14 TYPE OF REPORTING PERSON*
IN
<PAGE>
SCHEDULE 13D
Item 1. Security and Issuer
This statement relates to the common stock, par value
$.10 per share ("Shares"), of The Western Company of North America,
a Delaware corporation (the "Issuer"). The address of the
principal executive offices of the Issuer is 515 Post Oak Blvd.,
Houston, Texas 77027.
Item 2. Identity and Background
The persons filing this statement are Chelonian Corp., a
New York corporation ("Chelonian"), Unicorn Associates Corporation,
a New York corporation ("Unicorn"), ACF Industries, Incorporated,
a New Jersey corporation ("ACF"), ACF Industries Holding Corp., a
Delaware corporation ("Holding"), Highcrest Investors Corp., a
Delaware corporation ("Highcrest"), Icahn Holding Corporation, a
Delaware corporation ("IHC"), Riverdale Investors Corp., Inc., a
Delaware corporation ("Riverdale") and Carl C. Icahn, a citizen of
the United States of America (collectively, the "Registrants").
The principal business address and the address of the principal
office of the Registrants is 100 South Bedford Road, Mount Kisco,
New York 10549, with the exception of ACF, whose principal business
address and the address of its principal office is 3301 Rider Trail
South, Earth City, Missouri 63045.
Chelonian is a wholly-owned subsidiary of Unicorn.
Unicorn is a wholly-owned subsidiary of ACF. ACF is a wholly-owned
subsidiary of Holding. Holding is a wholly-owned subsidiary of
Highcrest. Highcrest is approximately 99.5% owned by IHC. Mr.
Icahn is the sole stockholder of IHC. Mr. Icahn is also the sole
stockholder of Riverdale.
Registrants may be deemed to be a "group" within the
meaning of Rule 13d-5 promulgated under the Securities Exchange Act
of 1934, as amended (the "Act").
Chelonian and Unicorn are primarily engaged in the
business of investing in securities. ACF is primarily engaged in
the leasing, sale and manufacture of railroad freight and tank
cars. Holding, Highcrest and IHC are primarily engaged in holding,
either directly or through subsidiaries, a majority of the common
stock of ACF. IHC also holds all of the stock of Icahn & Co., Inc.
("Icahn & Co."), a registered broker-dealer. From time to time,
IHC invests directly and indirectly in securities. Riverdale is
primarily engaged in the business of owning real estate. Mr.
Icahn's present principal occupation is acting as Chairman of the
Board of Directors of ACF.
The name, present principal occupation or employment and
business address of each director and executive officer of
Chelonian, Unicorn, ACF, Holding, Highcrest, IHC and Riverdale are
set forth on Schedule A attached hereto.
Carl C. Icahn is the sole stockholder and director of
Riverdale and the sole stockholder, a director and President of
IHC. Mr. Icahn is also Chairman of the Board, a director and
President of Highcrest and Chairman of the Board and a director of
Holding and ACF. Further, Mr. Icahn is a director of Unicorn and
Chelonian. Mr. Icahn is in a position directly and indirectly to
determine the investment and voting decisions made by Registrants.
Neither Chelonian, Unicorn, ACF, Holding, Highcrest, IHC,
Riverdale, Mr. Icahn, nor any executive officer or director of any
of the Registrants, has, during the past five years, (a) been
convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors), or (b) been a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction and as
a result of such proceeding was or is subject to a judgment, decree
or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws
or a finding of any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
The aggregate purchase price of the 295,800 Shares
purchased by Chelonian, including payment of commissions, was
$5,112,316.00. The sources of the funding for the purchase of
these Shares were borrowings pursuant to a margin account agreement
with National Financial Services Corporation ("NFSC") and the
general working capital of Chelonian.
The aggregate purchase price of the Shares purchased by
Riverdale, including payment of commissions, was $12,681,915.03.
The sources of funding for the purchase of these Shares were
borrowings pursuant to margin account agreements with each of NFSC
and Bear, Stearns Securities Corp., Bear, Stearns & Co. Inc.
("Bear Stearns") and a $10,000,000 line of credit facility provided
to Riverdale by Highcrest.
Registrants' average price for all Shares held by them is
approximately $14.81.
Item 4. Purpose of Transaction
Registrants acquired their Shares based upon their belief
that Shares were undervalued. Registrants are interested in having
the Issuer act with a view towards maximizing shareholder values. Well
after Registrants began to acquire Shares, the Issuer became the
subject of a takeover proposal from BJ Services, which proposal has
reportedly been rejected by the Issuer as inadequate.
Heretofore, Registrants have not been in contact with BJ
Services or the Issuer. However, in light of the Issuer's
rejection of the BJ Services takeover proposal, Registrants intend
to contact representatives of both the Issuer and BJ Services in
order to attempt to facilitate any possible business combination
which would be in the best interests of the shareholders of the
Issuer. Registrants are also considering other courses of action
designed to help maximize shareholder values, including, but not
limited to: (i) requesting a list of shareholders of the Issuer in
order to discuss with other shareholders whether management of the
Issuer is acting in their best interest; (ii) the possibility of
attempting to seek bidders for the Issuer, which may be either a
single bidder or a group of bidders and which might include
Registrants and/or (iii) whether to seek representation on the
Issuer's board of directors. Registrants have made no final
determination in respect of any of such courses of action at the
present time.
Registrants are in the process of preparing a
notification under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended ("HSR Act"), which would, after the expiration
of the appropriate waiting period, allow Registrants to acquire
additional Shares.
Registrants intend to acquire additional Shares as they
deem appropriate, whether in open market purchases, privately
negotiated transactions, by tender offer or otherwise, subject to
availability of Shares at prices which they deem favorable and
subject to the requirements of the HSR Act. While it is not
Registrants' present intention to do so, Registrants reserve the
right to dispose of some or all of their Shares in the open market
or in privately negotiated transactions to third parties or
otherwise.
Item 5. Interest in Securities of Issuer
(a) As of the close of business on October 13, 1994,
Registrants may be deemed to beneficially own in the aggregate
1,201,150 Shares, representing approximately 6.6% of the Issuer's
outstanding Shares (based upon the number of Shares reported to be
outstanding in the Issuer's Form 10-Q for the quarter ended June
30, 1994). Registrants have direct beneficial ownership of
Shares as follows:
<TABLE>
<CAPTION>
NUMBER OF APPROXIMATE PERCENTAGE OF
NAME SHARES OUTSTANDING SHARES
<S> <C> <C>
Chelonian 295,800 1.6%
Riverdale 905,350 5.0%
</TABLE>
Mr. Icahn (by virtue of his relationships to the other
Registrants, as disclosed in Item 2) may be deemed to beneficially
own (as that term is defined in Rule 13d-3 under the Act), the
Shares which each of Chelonian and Riverdale directly beneficially
own. Mr. Icahn disclaims beneficial ownership of such Shares for
all other purposes.
Each of Unicorn (by virtue of its position as sole
shareholder of Chelonian), ACF (by virtue of its position as sole
shareholder of Unicorn), Holding (by virtue of its position as sole
shareholder of ACF), Highcrest (by virtue of its position as sole
stockholder of Holding) and IHC (by virtue of its position as
controlling stockholder of Highcrest) may be deemed to beneficially
own the Shares which Chelonian directly beneficially owns. Each of
Unicorn, ACF, Holding, Highcrest and IHC disclaims beneficial
ownership of such Shares for all other purposes.
To the best of Registrants' knowledge, except as set
forth herein, neither the directors nor the executive officers of
the Registrants beneficially own any Shares.
(b) Each of Chelonian and Riverdale has the sole power
to vote or to direct the vote and to dispose or to direct the
disposition of Shares which it directly beneficially owns.
Each of Unicorn, ACF, Holding, Highcrest, IHC and Mr.
Icahn may be deemed to share with Chelonian the power to vote or to
direct the vote and to dispose or to direct the disposition of
Shares which Chelonian directly beneficially owns. Mr. Icahn may
be deemed to share with Riverdale the power to vote or to direct
the vote and to dispose or to direct the disposition of Shares
which Riverdale directly beneficially owns.
(c) The following table sets forth all transactions with
respect to Shares effected during the past sixty days by each of
the persons named in Item 5(a) above. Each transaction set forth
below reflects an open market purchase effected on the New York
Stock Exchange.
<TABLE>
<CAPTION>
PRICE PER RIVERDALE CHELONIAN
TRADE DATE SHARE ($) SHARES SHARES
<S> <C> <C> <C>
9/19/94 17.375 49,600 0
10/05/94 17.00 20,000 0
10/05/94 16.875 1,000 0
10/06/94 17.50 75,800 0
10/07/94 17.50 11,000 0
10/10/94 17.50 50,000 0
10/10/94 17.375 2,300 0
10/11/94 17.375 12,000 0
10/11/94 17.25 10,500 0
10/11/94 17.125 27,500 0
10/12/94 17.25 0 115,800
10/13/94 17.25 0 149,200
10/13/94 17.375 0 30,800
</TABLE>
(d) No other person has the right to receive or the
power to direct the receipt of dividends from, or the proceeds from
the sale of any Shares which Registrants may be deemed to
beneficially own.
(e) Not applicable.
Contracts, Arrangements, Understandings
or Relationships With Respect to
Item 6. Securities of the Issuer
Registrants are party to a Joint Filing Agreement, a copy
of which is attached hereto as Exhibit 1, with respect to the
filing of this statement and any amendments thereto.
Riverdale is a party to a margin agreement with Bear
Stearns, a copy of which is attached hereto as Exhibit 2. Each of
Riverdale and Chelonian is a party to a margin agreement with NFSC,
the form of which is attached hereto as Exhibit 3. Riverdale has
entered into a line of credit facility with Highcrest, the form of
which is attached hereto as Exhibit 4.
Item 7. Materials to be filed as Exhibits
The following documents are filed as Exhibits to this
Schedule 13D:
Exhibit 1 Joint Filing Agreement
Exhibit 2 Margin Agreement between Riverdale and
Bear Stearns
Exhibit 3 Form of Margin Agreement between NFSC and
each of Riverdale and Chelonian
Exhibit 4 Form of Promissory Note between Riverdale
and Highcrest
<PAGE>
Schedule A
Name, Business Address and Principal
Occupation of each Executive Officer and
Director of Registrants
----------------------------------------
The following sets forth the name and principal
occupation of each executive officer and director of the
Registrants. Each such person is a citizen of the United States of
America. Except as otherwise indicated, the business address of
each director and officer is 100 South Bedford Road, Mt. Kisco, New
York 10549. To the best of Registrants' knowledge, except as set
forth in this statement on Schedule 13D, none of the directors or
executive officers of the Registrants owns any Shares of Issuer.
<TABLE>
<CAPTION>
ACF INDUSTRIES HOLDING CORP.
NAME POSITION
<S> <C>
Carl C. Icahn Chairman of the Board
and Director
Richard T. Buonato Director, Vice President
and Secretary
Robert J. Mitchell President and Treasurer
<CAPTION>
ACF INDUSTRIES, INCORPORATED
NAME POSITION
<S> <C>
Carl C. Icahn Chairman of the Board
and Director
Alfred D. Kingsley Vice Chairman of the
Board and Director
James J. Unger<F1> President and Director
Roger D. Wynkoop<F1> Executive Vice President
James C. Bates<F1> Vice President and Chief
Financial Officer
Carl D. Eckhoff Vice President-Taxes
John L. Bowers<F1> Vice President and General
Manager-Manufacturing
Operations
William L. Finn<F1> Vice President-Operations and
General Manager-New Business
Group
David R. Sutliff<F1> Vice President-Engineering
George E. Sullivan<F1> Vice President-Sales and
Leasing
Robert J. Mitchell Treasurer and Secretary
<CAPTION>
CHELONIAN CORP.
NAME POSITION
<S> <C>
Carl C. Icahn Director
Edward E. Mattner President and Treasurer
Gail Golden Vice President and Secretary
<CAPTION>
HIGHCREST INVESTORS CORP.
NAME POSITION
<S> <C>
Carl C. Icahn Chairman of the Board, Director
and President
Richard T. Buonato Director, Senior Vice President
and Treasurer
Edward E. Mattner Director
Mark H. Rachesky Managing Director
Gail Golden Vice President and Secretary
<CAPTION>
ICAHN HOLDING CORPORATION
NAME POSITION
<S> <C>
Carl C. Icahn Director and President
Joseph D. Freilich<F2> Director, Secretary and
Treasurer
Mark H. Rachesky Managing Director
Richard T. Buonato<F2> Vice President and Controller
<CAPTION>
RIVERDALE INVESTORS CORP., INC.
NAME POSITION
<S> <C>
Carl C. Icahn Director
Edward E. Mattner President
Robert J. Mitchell Vice President and Treasurer
Gail Golden Vice President and Secretary
Richard T. Buonato Assistant Secretary
<CAPTION>
UNICORN ASSOCIATES CORPORATION
NAME POSITION
<S> <C>
Carl C. Icahn Director
Edward Mattner President and Treasurer
Gail Golden Vice President and Secretary
_______
<FN>
<F1> Business address is 3301 Rider Trial South, Earth City,
Missouri 63045.
<F2> Business address is 1 Wall Street Court, Suite 980, New York,
New York 10005
</TABLE>
<PAGE>
SIGNATURES
After reasonable inquiry and to the best of the
knowledge and belief of each of the undersigned, each of the
undersigned certifies that the information set forth in this
statement on Schedule 13D concerning the common stock, par value
$.10 per share, of The Western Company of North America, a Delaware
corporation, is true, complete and correct.
Dated: October 13, 1994
ICAHN HOLDING CORPORATION
HIGHCREST INVESTORS CORP.
By: /s/ Carl C. Icahn
Carl C. Icahn
Its: President
ACF INDUSTRIES HOLDING CORP.
ACF INDUSTRIES, INCORPORATED
By: /s/ Carl C. Icahn
Carl C. Icahn
Its: Chairman of the Board
/s/ Carl C. Icahn
Carl C. Icahn
RIVERDALE INVESTORS CORP., INC.
UNICORN ASSOCIATES CORPORATION
CHELONIAN CORP.
By: /s/ Gail Golden
Gail Golden
Its: Vice President
[Signature Page of Schedule 13D with respect to
The Western Company of North America]
<PAGE>
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) under the Securities Exchange
Act of 1934, as amended, the persons named below agree to the joint
filing on behalf of each of them of a statement on Schedule 13D
(including amendments thereto) with respect to the common stock,
par value $.10 per share of The Western Company of North America
and further agree that this Joint Filing Agreement be included as
an Exhibit to such joint filings. In evidence thereof, the
undersigned, being duly authorized, have executed this Joint Filing
Agreement this 13th day of October, 1994.
ICAHN HOLDING CORPORATION
HIGHCREST INVESTORS CORP.
By: /s/ Carl C. Icahn
Carl C. Icahn
Its: President
ACF INDUSTRIES HOLDING CORP.
ACF INDUSTRIES, INCORPORATED
By: /s/ Carl C. Icahn
Carl C. Icahn
Its: Chairman of the Board
/s/ Carl C. Icahn
Carl C. Icahn
RIVERDALE INVESTORS CORP., INC.
UNICORN ASSOCIATES CORPORATION
CHELONIAN CORP.
By: /s/ Gail Golden
Gail Golden
Its: Vice President
[Joint Filing Agreement for Schedule 13D
with respect to The Western Company of North America]
<PAGE>
EXHIBIT 2
BEAR STEARNS BEAR, STEARNS SECURITIES CORP.
ONE METROTECH CENTER NORTH
BROOKLYN, NEW YORK 11201-3859
(212) 272-1000
CUSTOMER AGREEMENT
PLEASE READ CAREFULLY, SIGN AND RETURN
This agreement ("Agreement") sets forth the terms
and conditions under which Bear, Stearns Securities Corp.,
Bear, Stearns & Co. Inc., and their successors and assigns
(collectively "Bear Stearns") will transact business with
you including but not limited to the maintenance of your
account(s). If these accounts are cash accounts and you
have fully paid for all securities therein, the provisions
of paragraphs 16 and 17 shall not bind you unless you enter
into a margin transaction.
1. APPLICABLE LAW AND REGULATIONS. All
transactions shall be subject to all applicable law and the
rules and regulations of all federal, state and self-
regulatory agencies, including, but not limited to, the
Board of Governors of the Federal Reserve System and the
constitution, rules and customs of the exchange or market
(and clearing house) where executed.
2. SECURITY INTEREST AND LIEN. As security for
the payment of all of your obligations and liabilities to
Bear Stearns, Bear Stearns shall have a continuing security
interest in all property in which you have an interest held
by or through Bear Stearns or its affiliates, including, but
not limited to, securities, commodity futures contracts,
commercial paper, monies and any after-acquired property.
In addition, in order to satisfy any such outstanding
liabilities or obligations, Bear Stearns may, at any time
and without prior notice to you, use, apply or transfer any
such securities or property interchangeably. In the event
of a breach or default under this Agreement, Bear Stearns
shall have all rights and remedies available to a secured
creditor under any applicable law in addition to the rights
and remedies provided herein.
3. DEPOSITS ON TRANSACTIONS. Whenever Bear
Stearns, in its sole discretion, considers it necessary for
its protection, it may require you to deposit cash or
collateral immediately in your account(s) prior to any
applicable settlement date in order to assure due
performance of your open contractual commitments.
4. BREACH, BANKRUPTCY OR DEFAULT. Any breach of
this Agreement or the filing of a petition or other
proceeding in bankruptcy, insolvency, or for the appointment
of a receiver by or against you, the levy of an attachment
against your account(s) with Bear Stearns, or your death,
mental incompetence or dissolution, or any other grounds for
insecurity, as determined by Bear Stearns in its sole
discretion, shall constitute, at Bear Stearns' election, a
default by you under all agreements Bear Stearns may then
have with you, whether heretofore or hereafter entered into.
In the event of default, Bear Stearns reserves the right to
sell, without prior notice to you, any and all property in
which you have an interest, held by or through Bear Stearns
or any of its affiliates, to buy any or all property which
may have been sold short, to cancel any or all outstanding
transactions and/or to purchase or sell any other securities
or property to offset market risk, and to offset any
indebtedness you may have (either individually or jointly
with others), after which you shall be liable to Bear
Stearns for any remaining deficiency, loss, costs or
expenses sustained by Bear Stearns in connection therewith.
Such purchases and/or sales may be effected publicly or
privately without notice or advertisement in such manner as
Bear Stearns may in its sole discretion determine. At any
such sale or purchase, Bear Stearns may purchase or sell the
property free of any right of redemption. In addition, Bear
Stearns shall have the right to set off and apply any amount
owing from Bear Stearns or any of its affiliates to you
against any indebtedness in your accounts, whether matured
or unmatured.
5. FEES AND CHARGES. You understand that Bear
Stearns may charge commissions and other fees for execution,
custody or any other service furnished to you, and you agree
to pay such commissions and fees at Bear Stearns' then
prevailing rates. You understand further that such
commissions and fees may be changed from time to time, upon
thirty days' prior written notice to you, and you agree to
be bound thereby.
6. TRANSACTION REPORTS AND ACCOUNT STATEMENTS.
Reports of the execution of orders and statements of your
account(s) shall be conclusive if not objected to in writing
within five days in the case of reports of execution, and
ten days in the case of account statements, after such
documents have been transmitted to you by mail or otherwise.
7. DEBIT BALANCES/TRUTH-IN-LENDING. You hereby
acknowledge receipt of Bear Stearns' Truth-in-Lending
disclosure statement. You understand that interest will be
charged on any debit balances in your account(s), in
accordance with the methods described in such statement or
in any amendment or revision thereto which may be provided
to you. Any debit balance which is not paid at the close of
an interest period will be added to the opening balance for
the next interest period.
8. CLEARANCE ACCOUNTS. Bear, Stearns Securities
Corp. carries your account(s) as clearing agent for your
broker. Unless Bear, Stearns Securities Corp. receives from
you prior written notice to the contrary, Bear, Stearns
Securities Corp. may accept from such other broker, without
any inquiry or investigation: (a) orders for the purchase or
sale of securities and other property in your account(s) on
margin or otherwise and (b) any other instructions
concerning your account(s) or the property therein. You
understand and agree that Bear Stearns shall have no
responsibility or liability to you for any acts or omissions
of such broker, its officers, employees or agents. You
agree that your broker and its employees are third-party
beneficiaries of this Agreement, and that the terms and
conditions hereof, including the arbitration provision,
shall be applicable to all matters between or among any of
you, your broker and its employees, and Bear Stearns and its
employees.
9. COSTS OF COLLECTION. You hereby authorize
Bear Stearns to charge you for any reasonable direct or
indirect costs of collection including, but not limited to,
attorneys' fees, court costs and other expenses.
10. IMPARTIAL LOTTERY ALLOCATION. You agree that
in the event Bear Stearns holds on your behalf bonds or
preferred stocks in street name or bearer form which are
callable in part, you will participate in the impartial
lottery allocation system of the called securities in
accordance with the rules of the New York Stock Exchange,
Inc. or any other appropriate self-regulatory organization.
When any such call is favorable, no allocation will be made
to any account(s) in which Bear Stearns has actual knowledge
that its officers, directors or employees have any financial
interest until all other customers are satisfied on an
impartial lottery basis.
11. WAIVER, ASSIGNMENT AND NOTICES. Neither Bear
Stearns' failure to insist at any time upon strict
compliance with this Agreement or with any of the terms
hereof nor any continued course of such conduct on its part
shall constitute or be considered a waiver by Bear Stearns
of any of its rights or privileges hereunder. Any
assignment of your rights and obligations hereunder or
interest in any property held by or through Bear Stearns
without obtaining the prior written consent of an authorized
representative of Bear Stearns shall be null and void.
Notices or other communications, including margin calls,
delivered or mailed to the address provided by you, shall,
until Bear Stearns has received notice in writing of a
different address, be deemed to have been personally
delivered to you.
12. FREE CREDIT BALANCES. You hereby direct Bear
Stearns to use any free credit balance awaiting investment
or reinvestment in your account(s) in accordance with all
applicable rules and regulations and to pay interest thereon
at such rate or rates and under such conditions as are
established from time to time by Bear Stearns for such
account(s) and for the amounts of cash so used.
13. RESTRICTIONS ON ACCOUNT. You understand that
Bear Stearns, in its sole discretion, may restrict or
prohibit trading of securities or other property in your
account(s).
14. CREDIT INFORMATION AND INVESTIGATION. You
authorize Bear Stearns and your broker, in their discretion,
to make and obtain reports concerning your credit standing
and business conduct. You may make a written request within
a reasonable period of time for a description of the nature
and scope of the reports made or obtained by Bear Stearns.
15. SHORT AND LONG SALES. In placing any sell
order for a short account, you will designate the order as
such and hereby authorize Bear Stearns to mark the order as
being "short." In placing any sell order for a long
account, you will designate the order as such and hereby
authorize Bear Stearns to mark the order as being "long."
The designation of a sell order as being for a long account
shall constitute a representation that you own the security
with respect to which the order has been placed, that such
security may be sold without restriction in the open market
and that, if Bear Stearns does not have the security in its
possession at the time you place the order, you shall
deliver the security by settlement date in good deliverable
form or pay to Bear Stearns any losses or expenses incurred
as a result of your failure to make delivery.
16. MARGIN ACCOUNTS. You hereby agree to deposit
and maintain such margin in your margin account(s) as Bear
Stearns may in its sole discretion require, and you agree to
pay forthwith on demand any debt balance owing with respect
to any of your margin account(s). Upon your failure to pay,
or at any time Bear Stearns, in its discretion, deems
necessary for its protection, whether with or without prior
demand, call or notice, Bear Stearns shall be entitled to
exercise all rights and remedies provided in paragraphs 2
and 4 above. No demands, calls, tenders or notices that
Bear Stearns may have made or given in the past in any one
or more instances shall invalidate your waiver of the
requirement to make or give the same in the future. Unless
you advise Bear Stearns to the contrary, you represent that
you are not an affiliate (as defined in Rule 144(a)(1) under
the Securities Act of 1933) of the issuer of any security
held in your account(s).
17. CONSENT TO LOAN OR PLEDGE OF SECURITIES.
Within the limits of applicable law and regulations, you
hereby authorize Bear Stearns to lend either to itself or to
others any securities held by Bear Stearns in your
account(s), together with all attendant rights of ownership
and to use all such property as collateral for its general
loans. Any such property, together with all attendant
rights of ownership, may be pledged, repledged, hypothecated
or rehypothecated either separately or in common with other
such property for any amounts due to Bear Stearns thereon or
for a greater sum, and Bear Stearns shall have no obligation
to retain a like amount of similar property in its
possession and control.
18. LEGALLY BINDING. You hereby agree that this
Agreement and all the terms hereof shall be binding upon you
and your estate, heirs, executors, administrators, personal
representatives, successors and assigns. You agree that all
purchases and sales shall be for your account(s) in
accordance with your oral or written instructions. You
hereby waive any and all defenses that any such instruction
was not in writing as may be required by the Statute of
Frauds or any other similar law, rule or regulation.
19. AMENDMENT; ENTIRE AGREEMENT. You agree that
Bear Stearns may modify the terms of this Agreement at any
time upon prior written notice. By continuing to accept
services from Bear Stearns, you will have indicated your
acceptance of any such modifications. If you do not accept
such modifications, you must notify Bear Stearns in writing;
your account may then be terminated by Bear Stearns, after
which you will remain liable to Bear Stearns for all
remaining liabilities or obligations. Otherwise, this
Agreement may not be waived or modified absent a written
instrument signed by an authorized representative of Bear
Stearns. Except as set forth above, this Agreement
represents the entire agreement and understanding between
you and Bear Stearns concerning the subject matter hereof.
20. NEW YORK LAW TO GOVERN. THIS AGREEMENT SHALL
BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK AND
SHALL BE CONSTRUED, AND THE RIGHTS AND LIABILITIES OF THE
PARTIES DETERMINED, IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK.
21. ARBITRATION.
- ARBITRATION IS FINAL AND BINDING ON THE
PARTIES.
- THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK
REMEDIES IN COURT, INCLUDING THE RIGHT TO JURY TRIAL.
- PRE-ARBITRATION DISCOVERY IS GENERALLY MORE
LIMITED THAN AND DIFFERENT FROM COURT PROCEEDINGS.
- THE ARBITRATORS' AWARD IS NOT REQUIRED TO
INCLUDE FACTUAL FINDINGS OR LEGAL REASONING AND ANY PARTY'S
RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULINGS BY THE
ARBITRATORS IS STRICTLY LIMITED.
- THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE
A MINORITY OF ARBITRATORS WHO WERE OR ARE AFFILIATED WITH
THE SECURITIES INDUSTRY.
- NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED
CLASS ACTION TO ARBITRATION, NOR SEEK TO ENFORCE ANY PRE-
DISPUTE ARBITRATION AGREEMENT AGAINST ANY PERSON WHO HAS
INITIATED IN COURT A PUTATIVE CLASS ACTION OR WHO IS A
MEMBER OF A PUTATIVE CLASS WHO HAS NOT OPTED OUT OF THE
CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSED BY THE PUTATIVE
CLASS ACTION UNTIL:
(I) THE CLASS CERTIFICATION IS DENIED;
(II) THE CLASS IS DECERTIFIED; OR
(III) THE CUSTOMER IS EXCLUDED FROM THE CLASS BY THE COURT.
SUCH FORBEARANCE TO ENFORCE AN AGREEMENT TO ARBITRATE SHALL
NOT CONSTITUTE A WAIVER OF ANY RIGHTS UNDER THIS AGREEMENT
EXCEPT TO THE EXTENT STATED HEREIN.
YOU AGREE, AND BY MAINTAINING AN ACCOUNT FOR YOU
BEAR STEARNS AGREES, THAT CONTROVERSIES ARISING BETWEEN YOU
AND BEAR STEARNS, ITS CONTROL PERSONS, PREDECESSORS,
SUBSIDIARIES AND AFFILIATES AND ALL RESPECTIVE SUCCESSORS,
ASSIGNS AND EMPLOYEES, WHETHER ARISING PRIOR TO, ON OR
SUBSEQUENT TO THE DATE HEREOF, SHALL BE DETERMINED BY
ARBITRATION. ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE
HELD AT THE FACILITIES AND BEFORE AN ARBITRATION PANEL
APPOINTED BY THE NEW YORK STOCK EXCHANGE, INC., THE AMERICAN
STOCK EXCHANGE, INC., OR THE NATIONAL ASSOCIATION OF
SECURITIES DEALERS, INC. (AND ONLY BEFORE SUCH EXCHANGES OR
ASSOCIATION). YOU MAY ELECT ONE OF THE FOREGOING FORUMS FOR
ARBITRATION, BUT IF YOU FAIL TO MAKE SUCH ELECTION BY
REGISTERED MAIL OR TELEGRAM ADDRESSED TO BEAR, STEARNS
SECURITIES CORP. 245 PARK AVENUE, NEW YORK, NEW YORK 10167,
ATTENTION: CHIEF LEGAL OFFICER (OR ANY OTHER ADDRESS OF
WHICH YOU ARE ADVISED IN WRITING), BEFORE THE EXPIRATION OF
TEN DAYS AFTER RECEIPT OF A WRITTEN REQUEST FROM BEAR
STEARNS TO MAKE SUCH ELECTION, THEN BEAR STEARNS MAY MAKE
SUCH ELECTION, FOR ANY ARBITRATION SOLELY BETWEEN YOU AND A
BROKER FOR WHICH BEAR STEARNS ACTS AS CLEARING AGENT, SUCH
ELECTION SHALL BE MADE BY REGISTERED MAIL TO SUCH BROKER AT
ITS PRINCIPAL PLACE OF BUSINESS. THE AWARD OF THE
ARBITRATORS, OR OF THE MAJORITY OF THEM, SHALL BE FINAL, AND
JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED IN ANY
COURT, STATE OR FEDERAL, HAVING JURISDICTION.
22. SEVERABILITY. If any provision herein is or
should become inconsistent with any present or future law,
rule or regulation of any sovereign government or regulatory
body having jurisdiction over the subject matter of this
Agreement, such provision shall be deemed to be rescinded or
modified in accordance with any such law, rule or
regulation. In all other respects, this Agreement shall
continue to remain in full force and effect.
23. CAPACITY TO CONTRACT; CUSTOMER AFFILIATION.
You represent that you are of legal age and that, unless you
have notified Bear Stearns to the contrary, neither you nor
any member of your immediate family is an employee of any
exchange or member thereof, the National Association of
Securities Dealers, Inc. or a member thereof, or of any
corporation, firm or individual engaged in the business of
dealing, as broker or principal, in securities, options or
futures, or of any bank, trust company or insurance company.
24. EXTRAORDINARY EVENTS. Bear Stearns shall not
be liable for losses caused directly or indirectly by
government restrictions, exchange or market rulings,
suspension of trading, war, strikes or other conditions
beyond its control.
25. HEADINGS. The headings of the provisions
hereof are for descriptive purposes only and shall not
modify or qualify any of the rights or obligations set forth
in such provisions.
26. TELEPHONE CONVERSATIONS. For the protection
of both you and Bear Stearns, and as a tool to correct
misunderstandings, you hereby authorize Bear Stearns at Bear
Stearns' discretion and without prior notice to you, to
monitor and/or record any or all telephone conversations
between you, Bear Stearns and any of Bear Stearns' employees
or agents.
If this is a Joint Account, both parties must
sign. Persons signing on behalf of others should indicate
the titles or capacities in which they are signing.
BY SIGNING THIS AGREEMENT YOU ACKNOWLEDGE THAT:
1. THE SECURITIES IN YOUR MARGIN ACCOUNT(S) AND
ANY SECURITIES FOR WHICH YOU HAVE NOT FULLY PAID TOGETHER
WITH ALL ATTENDANT OWNERSHIP RIGHTS, MAY BE LOANED TO BEAR
STEARNS OR LOANED OUT TO OTHERS AND
2. YOU HAVE RECEIVED A COPY OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION
CLAUSE AT PARAGRAPH 21.
THIS AGREEMENT DATED AS OF February 1, 1994.
Riverdale Investors Corp. Inc.
(Typed or Printed Name)
/s/ Edward E. Mattner, as President
(Signature)
One Wall Street Court - Suite 980
New York, New York 10005
(Mailing Address)
__________________________ Account No.: 905-01422-1-6-007
(Typed or Printed Name)
__________________________ Date:____________________
(Signature)
<PAGE>
EXHIBIT 3
MARGIN ACCOUNT AGREEMENT
To: National Financial Services Corporation ("NFSC" or
"you").
1. I agree as follows with respect to all of my
accounts, in which I have an interest alone or with others,
which I have opened or will open in the future, with you for
the purchase and sale of securities. I hereby acknowledge
that I have read, understand and agree to the terms set
forth below. Upon acceptance of my application(s), I
understand NFSC will maintain an account for me and, as my
broker, buy or sell securities or other products according
to my instructions. All decisions relating to my investment
or trading activity shall be made by me or my duly
authorized representative. Any information I give NFSC on
this account agreement will be subject to verification, and
I authorize you to obtain a credit report about me at any
time. Upon written request, NFSC will provide the name and
address of the credit reporting agency used. I authorize
NFSC and my Broker/Dealer to exchange credit information
about me. My Broker/Dealer also may tape record
conversations with me in order to verify data concerning any
transactions I request, and I consent to such recording. I
also understand that my account(s) is carried by National
Financial Services Corporation (NFSC), and that all terms of
this agreement also apply between me and NFSC. I have
carefully examined my financial resources, investment
objectives, tolerance for risk along with the terms of the
margin agreement, and have determined that margin financing
is appropriate for me. I understand that investing on
margin involves the extension of credit to me and that my
financial exposure could exceed the value of my securities.
2. I am of legal age in the state in which I reside
and represent that, except as otherwise disclosed to you in
writing, I am not an employee of any Exchange or of a Member
Firm of any Exchange or the NASD, or of a bank, trust
company, or insurance company and that I will promptly
notify you if I become so employed.
3. All transactions through NFSC are subject to the
constitution, rules, regulations, customs, and usages of the
exchange, market or clearing house where executed, as well
as to any applicable federal or state laws, rules and
regulations.
4. Any and all credit balances, securities, or
contracts relating thereto, and all other property of
whatsoever kind belonging to me or in which I may have an
interest held by you or carried for my accounts shall be
subject to a general lien for the discharge of my
obligations to you (including unmatured and contingent
obligations) however arising and without regard to whether
or not you have made advances with respect to such property
and without notice to me may be carried in your general
loans and all securities may be pledged, repledged,
hypothecated or rehypothecated, separately or in common with
other securities or any other property, for the sum due to
you thereon or for a greater sum and without retaining in
your possession and control for delivery a like amount of
similar securities or other property. At any time and from
time to time you may, in your discretion, without notice to
me, apply and/or transfer any securities, contracts relating
thereto, cash or any other property therein, interchangeably
between any of my accounts, whether individual or joint from
any of my accounts to any account guaranteed by me. You are
specifically authorized to transfer to my cash account, on
the settlement day following a purchase made in that
account, excess funds available in any of my other accounts,
including, but not limited to any free balances in any
margin account, sufficient to make full payment of this cash
purchase. I agree that any debit occurring in any of my
accounts may be transferred by you at your option to my
margin account.
5. I will maintain such margins as you may in your
discretion require from time to time and will pay on demand
any debit balance owing with respect to any of my accounts.
I will be liable to you for any deficiencies in such account
in the event of the liquidation of such accounts, in whole
or in part, by you or the undersigned. Whenever in your
discretion you deem it desirable for your protection (and
without the necessity of a margin call), including but not
limited to extreme market volatility or trading volumes, an
instance where a petition in bankruptcy or for the
appointment of a receiver is filed by or against me, or an
attachment is levied against my account, or in the event of
notice of my death or incapacity, or incompliance with the
orders of any Exchange, you may, without prior demand,
tender, and without any notice of the time or place of sale,
all of which are expressly waived, sell any or all
securities, or contracts relating thereto which may be in
your possession, or which you may be carrying for me, or buy
any securities, or contracts relating thereto of which my
account or accounts may be short, in order to close out in
whole or in part any commitment in my behalf or you may
place stop orders with respect to such securities and such
sale or purchase may be made at your discretion on any
Exchange or other market where such business is then
transacted, or at public auction or private sale with or
without advertising and neither any demands, calls, tenders
or notices which you may make or give in any one or more
instances nor any prior course of conduct or dealings
between us shall invalidate the aforesaid waivers on my
part. You shall have the right to purchase for your own
account any or all of the aforesaid property at such sale,
discharged of any right of redemption which is hereby
waived. I understand that my financial exposure could
exceed the value of securities in my account.
6. In the absence of a specific demand, all
transactions in any of my accounts are to be paid for,
securities delivered or required margin deposited, no later
than 2 p.m. Eastern Time on the settlement date. NFSC
reserves the right to cancel or liquidate at my risk any
transaction not timely settled. Margin calls are due on the
date indicated regardless of the settlement date of the
transaction. For most stocks and bonds, the settlement date
is the fifth business day following the trade date.
Settlement dates for U.S. government issues vary. Options
settle on the next business day. Interest will be charged
on any debit balance which remains in my account past the
settlement date as explained in the Disclosure of Credit
Terms section of this Agreement.
7. I agree to be charged interest on any credit
extended to or maintained for me by you for the purpose of
purchasing, carrying or trading in any security. The annual
rate of interest which will be charged on net debit balances
will be calculated by means of a formula based on the rate
for brokers' call money published in financial sections of
newspapers. The annual rate of interest is subject to
change without prior notice in accordance with changes in
the brokers' call money rate. With the exception of a
credit balance in the short account, all other credit
balances in all cash and margin accounts are combined and
interest is charged to the margin account on any resulting
debit balance. Interest is computed monthly on the net
debit balances during the month. If during the month, there
is a change in interest rates, separate charges will be
shown for each interest period under the different rate.
The combining of balances, as well as the actual interest
calculations, are done by computer, but interest is arrived
at by multiplying the net debit balance by the effective
rate of interest divided by 360, times the number of days.
In the event there is a decline in the market value of the
securities in the margin account, you may have to request
additional collateral. Generally, such a request for
additional collateral will be made by you when the equity in
the account falls below 30%. However, you retain the right
to require additional margin at any time you deem it
necessary or advisable. Any such call for additional
collateral may be met by delivery of additional marginable
securities or cash. Any securities in any of the accounts
of the undersigned are collateral for any debit balances in
the account with you. A lien is created by these debits to
secure the amount of money owed you. This means that, in
accordance with the terms of this agreement, securities in
the said accounts can be sold by you to redeem or to
liquidate any debit balances in these accounts.
8. I agree that, in giving orders to sell, all
"short" sale orders will be designated as "short" and all
"long" sale orders will be designated as "long" and that the
designation of a sell order as "long" is a representation on
my part that I own the security and, unless otherwise waived
by you in your discretion that I have delivered such
security to you.
9. Reports of the execution of orders and statements
of my account shall be conclusive if not objected to in
writing within five days and ten days, respectively, after
transmittal to me by mail or otherwise.
10. All communications including margin calls may be
sent to me at my address given you, or at such other address
as I may hereafter give you in writing, and all
communications so sent, whether in writing or otherwise,
shall be deemed given to me personally, whether actually
received or not.
11. I am liable for payment upon demand of any debit
balance or other obligation owed in any of my accounts or
any deficiencies following a whole or partial liquidation,
and I agree to satisfy any such demand or obligation.
Interest will accrue on any such deficiency at prevailing
margin rates until paid. I agree to reimburse NFSC for all
reasonable costs and expenses incurred in the collection of
any debit balance or unpaid deficiency in any of my
accounts, including, but not limited to, attorneys' fees.
12. NFSC is not liable for any losses caused directly
or indirectly by government restrictions, exchange or market
rulings, suspension of trading or other conditions beyond
its control, including, but not limited to, extreme market
volatility or trading volumes.
13. No waiver of any provision of this Agreement shall
be deemed a waiver of any other provision, nor a continuing
waiver of the provision or provisions so waived.
14. I understand that no provision of this Agreement
can be amended or waived except by an officer of your
Company, and that this Agreement shall continue in force
until its termination by me is acknowledged in writing by an
officer of your Company, or until written notice of
termination by you shall have been mailed to me at my
address last given you.
15. THIS CONTRACT SHALL BE GOVERNED BY THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS, AND SHALL INURE TO THE
BENEFIT OF YOUR SUCCESSORS AND ASSIGNS, AND SHALL BE BINDING
ON THE UNDERSIGNED, HIS HEIRS, EXECUTORS, ADMINISTRATORS,
SUCCESSORS AND ASSIGNS.
16. If any provision hereof is or at any time should
become inconsistent with any present or future law, rule or
regulation of any securities exchange, or of any sovereign
government or a regulatory body thereof and of these bodies
have jurisdiction over the subject matter of this Agreement,
said provision shall be deemed to be superseded or modified
to conform to such law, rule or regulation, but in all other
respects this Agreement shall continue and remain in full
force and effect.
17. If the undersigned shall consist of more than one
individual, their obligations under Agreement shall be joint
and several.
18. I understand that you may deliver margin calls and
other notices to my agent, __________________________ for
the sole purpose of collection of obligations of mine under
this agreement. I agree to the foregoing and further
understand that _______ may act on your behalf with respect
to margin calls in your discretion.
19. I represent that I have read and understand the
Disclosure of Credit Terms on Transactions. I further
understand that they may be amended from time to time.
20. YOU ARE HEREBY AUTHORIZED TO LEND SEPARATELY OR
TOGETHER WITH THE PROPERTY OF OTHERS EITHER TO YOURSELVES OR
TO OTHERS AND PROPERTY WHICH YOU MAY BE CARRYING FOR ME ON
MARGIN. THIS AUTHORIZATION SHALL APPLY TO ALL ACCOUNTS
CARRIED BY YOU FOR ME AND SHALL REMAIN IN FULL FORCE UNTIL
WRITTEN NOTICE OF REVOCATION IS RECEIVED BY YOU AT YOUR
PRINCIPAL OFFICE IN BOSTON, MASSACHUSETTS.
I REPRESENT THAT I HAVE READ THE TERMS AND CONDITIONS AS
CURRENTLY IN EFFECT AND AGREE TO BE BOUND BY SUCH TERMS AND
CONDITIONS AS CURRENTLY IN EFFECT AND AS MAY BE AMENDED FROM
TIME TO TIME. THIS ACCOUNT IS GOVERNED BY A PRE-DISPUTE
ARBITRATION CLAUSE WHICH IS ENCLOSED. I ACKNOWLEDGE RECEIPT
OF THE PRE-DISPUTE ARBITRATION CLAUSE.
Date:__________________
Customer's Signature/Date__________________________________
_______________________________________
Signature of Joint Tenant (if any)/Date
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EXHIBIT 4
$10,000,000 as of January 20, 1994
PROMISSORY NOTE
For Value Received, the undersigned, Riverdale
Investors Corp., Inc. ("Borrower"), hereby promises to pay
to the order of Highcrest Investors Corp. ("Highcrest") the
principal sum of TEN MILLION DOLLARS and NO CENTS
($10,000,000), or if less, the outstanding principal amount
of the Loans made to Borrower by Highcrest pursuant to the
letter agreement (the "Agreement") dated as of January 20,
1994, between Borrower and Highcrest.
The principal amount of this promissory note
("Note") shall be payable on January 19, 1996, in an amount
equal to the then outstanding principal balance of this
Note.
This Note shall bear interest from January 20,
1994, on the unpaid principal hereof at the rate per annum
equal to the prime rate, as established by National
Westminster Bank, USA from time to time. Interest shall be
computed on the basis of a 365-day year for the actual
number of days elapsed, and shall be payable semi-annually
in arrears on the first day of July and January and at
maturity.
On January 19, 1996, this Note shall become at
once due and payable, without notice, presentment or demand
of payment, which are expressly waived. No delay on the
part of Highcrest in exercising any of its options, powers
or rights, or partial or single exercise thereof, shall
constitute a waiver thereof.
This Note is the Note referred to in the Agreement
and may be prepaid in accordance with the provisions
thereof.
All borrowings evidenced by this Note and all
payments and prepayments of the principal hereof and
interest hereon shall be endorsed by the holder hereof on
Schedule A attached hereto and made a part hereof, or on a
continuation hereof which shall be attached hereto and made
a part hereof, or otherwise recorded by such holder in its
internal records; provided, however, that the failure of the
holder hereof to make such a notation or any error in such a
notation shall not in any manner affect the obligation of
Borrower to make payments of principal and interest in
accordance with the terms of this Note.
The Borrower may prepay principal, and, or
interest on the Note, in whole or in part, without premium
or penalty. Each prepayment of principal shall be
accompanied by the amount of interest accrued but unpaid, on
the amount of principal prepaid to the date of prepayment.
IN WITNESS WHEREOF, the Borrower has caused this
Note to be duly executed as of the 20th day of January,
1994.
RIVERDALE INVESTORS CORP., INC.
By:___________________________
Robert J. Mitchell,
Vice President and Treasurer
[Promissory Note- Highcrest
Riverdale regarding
$10 million line of credit
dated as of January 20, 1994]
