<PAGE> 1
REGISTRATION NO. 333-73173
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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<TABLE>
<S> <C>
XEROX CORPORATION XEROX CAPITAL (EUROPE) PLC
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEW YORK UNITED KINGDOM
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (STATE OR OTHER JURISDICTION OF INCORPORATION OR
ORGANIZATION) ORGANIZATION)
16-0468020 NOT APPLICABLE
(I.R.S. EMPLOYER IDENTIFICATION NUMBER) (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
P.O. BOX 1600 PARKWAY
STAMFORD, CONNECTICUT 06904-1600 MARLOW
(203) 968-3000 BUCKINGHAMSHIRE SL7 1YL
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, ENGLAND
INCLUDING AREA CODE OF REGISTRANT'S PRINCIPAL 44-1-628-89-0000
EXECUTIVE OFFICER) (ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER,
INCLUDING AREA CODE OF REGISTRANT'S PRINCIPAL
EXECUTIVE OFFICER)
</TABLE>
-------------------------
MARTIN S. WAGNER
ASSISTANT SECRETARY
XEROX CORPORATION
P.O. BOX 1600
STAMFORD, CONNECTICUT 06904-1600
(203) 968-3000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPY TO:
JOHN W. WHITE
CRAVATH, SWAINE & MOORE
WORLDWIDE PLAZA
825 EIGHTH AVENUE
NEW YORK, NEW YORK 10019
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) UNIT(2) PRICE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities(3).......................
Preferred Stock(3)....................... $4,000,000,000 100% $4,000,000,000 $1,112,000
Common Stock(3)..........................
Guaranties(4)............................
</TABLE>
(1) Subject to Rule 462(b) under the Securities Act, in no event will the
aggregate initial offering price of the securities issued under this
Registration Statement exceed $4,000,000,000, or if any securities are
issued in any foreign currency units, the U.S. dollar equivalent of
$4,000,000,000. For Debt Securities issued with an original issue discount,
the amount to be registered is calculated as the initial accreted value of
such Debt Securities.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o).
(3) In addition to any Preferred Stock that may be issued directly under this
Registration Statement, there are being registered hereunder an
indeterminate number of shares of Preferred Stock and/or Common Stock as may
be issued upon conversion, exchange and/or redemption of the Debt Securities
or Preferred Stock, as the case may be. No separate consideration will be
received for any shares of Preferred Stock or Common Stock so issued upon
conversion, exchange or redemption.
(4) No additional registration fee is payable in respect of the registration of
the Guaranties.
STATEMENT PURSUANT TO RULE 429(b)
The prospectus included in this registration statement also relates to
$485,700,000 of debt securities previously registered under the Registrants'
registration statement on Form S-3 (file nos. 333-34333 and 333-34333-01). A
registration fee of $147,181 was paid upon the filing of the prior registration
statement. This registration statement also constitutes Post-Effective Amendment
No. 1 with respect to such prior registration statement on Form S-3 (files nos.
333-34333 and 333-34333-01).
------------------------
THIS 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> 2
SUBJECT TO COMPLETION MARCH 10, 1999
PROSPECTUS
XEROX CORPORATION
800 LONG RIDGE ROAD
STAMFORD, CONNECTICUT 06904
(203) 968-3000
XEROX CAPITAL (EUROPE) PLC
(IRREVOCABLY AND UNCONDITIONALLY GUARANTEED BY XEROX CORPORATION)
PARKWAY
MARLOW
BUCKINGHAMSHIRE SL7 1YL
ENGLAND
44-1-628-89-0000
$4,485,700,000
DEBT SECURITIES
PREFERRED STOCK
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WE WILL PROVIDE SPECIFIC TERMS OF THESE SECURITIES IN
SUPPLEMENTS TO THIS PROSPECTUS.
YOU SHOULD READ THIS PROSPECTUS AND ANY SUPPLEMENT
CAREFULLY BEFORE YOU INVEST.
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Our common stock is listed on the New York Stock Exchange under the trading
symbol "XRX".
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 1999.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE> 3
ABOUT THIS PROSPECTUS
This Prospectus is part of a Registration Statement that Xerox Corporation
("Xerox" or "we") and Xerox Capital (Europe) plc ("XCE") have filed with the
Securities and Exchange Commission (the "Commission") utilizing a "shelf"
registration process. Each of Xerox and XCE is an issuer under the shelf. Under
this shelf process, XCE and we may, from time to time over approximately the
next two years, sell any combination of the securities described in this
Prospectus in one or more offerings up to a total dollar amount of
$4,485,700,000 or the equivalent of this amount in foreign currencies or foreign
currency units.
This Prospectus provides you with a general description of the securities
XCE and we may offer. Each time XCE or we sell securities, the issuer will
provide a prospectus supplement that will contain specific information about the
terms of that offering. The prospectus supplement may also add, update or change
information contained in this Prospectus. You should read both this Prospectus
and any prospectus supplement together with additional information described
below under the heading "Where You Can Find More Information".
You should rely only on the information provided in this Prospectus and in
any prospectus supplement including the information incorporated by reference.
Neither XCE nor we have authorized anyone to provide you with different
information. XCE and we are not offering the securities in any state where the
offer is not permitted. You should not assume that the information in this
Prospectus, or any supplement to this Prospectus, is accurate at any date other
than the date indicated on the cover page of the documents.
WHERE YOU CAN FIND MORE INFORMATION
Xerox files annual, quarterly and current reports, proxy statements and
other information with the Commission. You may read and copy any document we
file at the Commission's public reference rooms in Washington, D.C., New York,
New York and Chicago, Illinois. Please call the Commission at 1-800-SEC-0330 for
further information on the public reference rooms. Our Commission filings are
also available to the public at the Commission's web site at http://www.sec.gov.
The Commission allows us to "incorporate by reference" into this prospectus
the information we file with it, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus, and later
information that we file with the Commission will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the Commission under Section 13(a),
13(c), 14 (other than the information required by paragraphs (k) and (l) of
Section 229.402 of Regulation S-K) or 15(d) of the Securities Exchange Act of
1934 until our offering is completed:
(i) Xerox Annual Report on Form 10-K for the year ended December 31,
1997;
(ii) Xerox Quarterly Reports on Form 10-Q for the quarters ended March
31, 1998, June 30, 1998 and September 30, 1998;
(iii) Xerox Current Reports on Form 8-K dated January 16, 1998, March
5, 1998, March 11, 1998, April 1, 1998, April 7, 1998, May 20, 1998,
December 18, 1998 and January 25, 1999;
(iv) Description of Xerox' Shareholders Rights Plan (the "Rights
Plan") contained in Form 8-A filed with the Commission on April 7, 1997, as
amended by Amendment No. 1 thereto filed with the Commission on January 26,
1999; and description of the Rights Agreement dated as of April 7, 1997
between us and The First National Bank of Boston, as Rights Agent (the
"Rights Agreement"), with respect to the Rights Plan, which is filed as
Exhibit 4.10 to our Current Report on Form 8-K dated April 7, 1997. The
Rights Plan and the Rights Agreement relate to the rights to Purchase
Series A Cumulative Preferred Stock; and
2
<PAGE> 4
(v) Description of Xerox' Common Stock, contained in Amendment No. 4
on Form 8-A filed with the Commission on January 26, 1999, relating to our
Common Stock.
You may request a copy of these filings at no cost, by writing to or
telephoning our transfer agent at the following address: BankBoston, N.A., P.O.
Box 8038, Boston, Massachusetts 02266-8038, (800)828-6396, E-mail at website
www.equiserve.com.
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of the
document.
If you have questions about interest or principal payments, current
interest rates, calls for redemption, CUSIP numbers, registration status and
other similar matters relating to Debt Securities that have been issued under
this registration statement, please contact our issuing and paying agent for the
securities, Citibank, N.A., at 111 Wall Street, Fifth Floor, Zone 1, New York,
NY 10043, telephone (212) 657-5764.
XEROX CORPORATION
Xerox Corporation is The Document Company and a leader in the global
document market, providing document solutions that enhance business
productivity. We distribute our products in the Western Hemisphere through
divisions and wholly-owned subsidiaries. In Europe, Africa, the Middle East and
parts of Asia including Hong Kong, India and China, we distribute through a
number of direct and indirect wholly-owned European subsidiaries. Fuji Xerox
Co., Limited, an unconsolidated entity jointly owned by Xerox Limited and Fuji
Photo Film Company Limited, develops, manufactures and distributes document
processing products in Japan and the Pacific Rim. Japan represents approximately
90 percent of Fuji Xerox revenues, and Australia, New Zealand, Singapore,
Malaysia and Korea represent the remaining 10 percent. Fuji Xerox conducts
business in other Pacific Rim countries through joint ventures and distributors.
At December 31, 1998, our international operations accounted for 48 percent of
Document Processing revenues.
In the past, we engaged in Insurance and Other Financial Services ("IOFS")
businesses. In 1993, however, we announced our decision to sell or otherwise
disengage from these businesses. Since 1995, we have sold all five of the
remaining Talegen Holdings, Inc. ("Talegen") insurance companies and three
related service companies, effectively completing our disengagement strategy
from the Talegen companies. The results of our Insurance operations have been
accounted for as discontinued operations and the Document Processing business
has been the only component of continuing operations since 1995.
Our Document Processing activities encompass developing, manufacturing,
marketing, servicing and financing a complete range of document processing
products and solutions designed to make offices around the world more
productive. We help customers make documents better, make better documents, and
work better with documents.
We create customer value by providing innovative document technologies,
products, systems, services and solutions that allow our customers to:
- Move easily within and between the electronic and paper forms of
documents.
- Scan, store, retrieve, view, revise and distribute documents
electronically anywhere in the world.
- Print or publish documents on demand, at the point closest to the need,
including those locations of our customers' customers.
- Integrate the currently separate modes of producing documents, such as
the data center, production publishing and office environments into a
seamless, user-friendly enterprise-wide document systems network -- with
technology acting as an enabler.
3
<PAGE> 5
We have formed alliances to bring together the diverse infrastructures that
currently exist and to nurture the development of an open document services
environment to support complementary products from our partners and customers.
We are working with more than 50 industry organizations to make office,
production and electronic printing an integrated, seamless part of today's
digital work place.
We offer our document processing customers financing of their purchases of
Xerox equipment primarily through Xerox Credit Corporation ("XCC") in the United
States, largely by wholly-owned financing subsidiaries in Europe, and through
divisions in Canada and Latin America. While competition for this business from
banks and other finance companies remains extensive, we actively market our
equipment financing services on the basis of customer service, convenience and
competitive rates. On average, 75 to 80 percent of equipment sales are financed
through Xerox.
Xerox is a New York corporation with its principal executive offices
located at 800 Long Ridge Road, Stamford, Connecticut 06904, telephone (203)
968-3000.
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table shows the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividends of Xerox for
the periods indicated.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges(1)(2).............. 1.80* 3.64 3.71 3.54 3.23
Ratio of earnings to combined fixed charges and
preferred dividends(3).............................. 1.70** 3.40 3.43 3.26 2.91
</TABLE>
- ---------------
(1) The ratio of earnings to fixed charges has been computed based on Xerox'
continuing operations by dividing total earnings available for fixed
charges, excluding capitalized interest and preferred stock dividends of
subsidiaries, by total fixed charges. Fixed charges consist of interest,
including capitalized interest and preferred stock dividends of
subsidiaries, and one-third of rent expense as representative of the
interest portion of rentals. Debt has been assigned to discontinued
operations based on historical levels assigned to the businesses when they
were continuing operations adjusted for subsequent paydowns. Discontinued
operations consist of Xerox' Insurance, Other Financial Services and Third
Party Financing and Real Estate businesses.
(2) Xerox' ratio of earnings to fixed charges includes the effect of its finance
subsidiaries, which primarily finance Xerox equipment. Financing businesses
are more highly leveraged and, therefore, tend to operate at lower earnings
to fixed charges ratio levels than do nonfinancial businesses.
(3) The ratio of earnings to combined fixed charges and preferred dividends has
been computed based upon earnings divided by fixed charges and preferred
stock dividend requirements for the periods indicated.
* Excluding the effects of the charges recorded in connection with the 1998
restructuring plan, the ratio of earnings to fixed charges would be 3.55.
** Excluding the effects of the charges recorded in connection with the 1998
restructuring plan, the ratio of earnings to combined fixed charges and
preferred dividends would be 3.35.
XEROX CAPITAL (EUROPE) PLC
The principal activity of XCE is to raise funds in the financial markets,
primarily to support the financing operations of Xerox Limited through Xerox
Limited's wholly-owned financing subsidiaries and the funding of Xerox' other
subsidiaries and for other corporate purposes. XCE's borrowings under this
registration statement will be fully guaranteed by Xerox. See: "Description of
the Debt Securities and Guaranties: Xerox Guaranty".
4
<PAGE> 6
XCE is a public limited company organized under the laws of England and
Wales. Its principal executive offices are located at Parkway, Marlow,
Buckinghamshire, SL7 1YL, England, telephone 44-1-628-89-0000. XCE is an
indirect wholly-owned subsidiary of Xerox.
ENFORCEABILITY OF CERTAIN CIVIL LIABILITIES
Some of the directors of XCE and certain of the experts named herein are
citizens or residents of jurisdictions other than the United States. All or a
substantial portion of the assets of these directors, executive officers and
experts and all of the assets of XCE are or may be located outside the United
States. As a result, it may not be possible to effect service of process on
these directors, executive officers or experts or XCE in the United States. It
may also be impossible to enforce, collect or realize, in United States courts,
upon judgments that may be obtained against such persons in United States courts
and predicated upon civil liability under United States securities laws. We and
XCE have been advised by Lovell White Durrant, special English counsel to us and
XCE, that there is doubt as to the enforceability in England and Wales in
original actions or actions for the enforcement of judgments of United States
courts, of civil liabilities predicated solely on United States Federal
securities laws. In the indenture under which the securities will be issued, XCE
has appointed us as its agent for service of process in any suit, action or
proceeding with respect to such indenture brought under Federal or state
securities laws in any Federal or state court located in The City of New York,
and has submitted to such jurisdiction.
SUBSCRIPTION AGREEMENT
XCE and Xerox Overseas Holdings Limited (formerly Xerox Overseas Holdings
PLC, "Xerox Overseas") have entered into a Novated and Restated Subscription
Agreement dated October 31, 1997 (the "Subscription Agreement") pursuant to
which Xerox Overseas has agreed to subscribe and pay in cash, at any time, upon
written demand by XCE, for further shares in XCE in an amount equal to the
amount by which 25 percent of XCE's then-outstanding indebtedness (excluding
contingent liabilities) exceeds the par value, together with any premium, of
Xerox Overseas' shareholding in XCE. In the indenture pursuant to which any debt
securities of XCE will be issued, XCE has agreed that, in the event of a default
by XCE in the performance of its obligations to pay the principal of, premium,
if any, and interest, if any, on any such debt securities, any Holder of such
debt securities shall be entitled to serve upon XCE a demand requiring it to
serve a written demand on Xerox Overseas for the subscription of additional
shares in the share capital of XCE in accordance with the Subscription
Agreement. The Subscription Agreement may be inspected during normal business
hours at the principal executive office of XCE. The obligations of Xerox
Overseas under the Subscription Agreement are unsecured and Xerox Overseas is
not subject to any restrictive covenants thereunder. The Subscription Agreement
is governed by English Law.
USE OF PROCEEDS
XCE and we expect to use the net proceeds we receive from the sale of the
securities offered by this Prospectus and the accompanying prospectus
supplement(s) for general corporate purposes. General corporate purposes may
include:
- the repayment of debt,
- investments in or extensions of credit to our subsidiaries,
- redemption of preferred stock,
- repurchase of Xerox Common Stock, and
- the financing of possible acquisitions or business expansion or the
refinancing of prior acquisitions.
The net proceeds may be invested temporarily or applied to repay short-term debt
until they are used for their stated purpose.
5
<PAGE> 7
THE SECURITIES WE MAY OFFER
This Prospectus is part of a shelf registration statement. Under this shelf
registration statement, XCE and we may offer from time to time up to
$4,485,700,000 of any of the following securities, either separately or in
units:
- Debt Securities
- Preferred Stock
- Common Stock (issuable only upon conversion, exchange or redemption of
Debt Securities or Preferred Stock)
- Guaranties
Debt securities and preferred stock may be offered by either XCE or us (in the
case of the issue of preferred stock by XCE, however, only after amendment of
its Articles of Association). Debt securities and preferred stock offered by XCE
will be non-convertible. Common stock (issuable only upon conversion, exchange
or redemption of other securities) and guaranties may be offered only by us.
DESCRIPTION OF THE DEBT SECURITIES AND GUARANTIES
XCE and we may offer unsecured general obligations, which may be senior
(the "Senior Debt Securities") or subordinated (the "Subordinated Debt
Securities"). The Senior Debt Securities and the Subordinated Debt Securities
are together referred to in this prospectus as the "Debt Securities." The Senior
Debt Securities will have the same rank as all of the issuer's other unsecured,
unsubordinated debt. The Subordinated Debt Securities may be senior or junior
to, or rank pari passu with, the other subordinated obligations of the issuer
and will be entitled to payment only after payment on the issuer's Senior
Indebtedness (as described below). The Subordinated Debt Securities will be
effectively subordinated to creditors (including trade creditors) and the
issuer's preferred stockholders and those of its subsidiaries.
The Senior Debt Securities and Guaranties will be issued in one or more
series under an indenture dated as of October 21, 1997 among Xerox; XCE; XOH;
Xerox as guarantor; and Citibank, N.A., as the trustee (the "Trustee") (as may
be amended, supplemented or modified from time to time, the "Indenture"). The
Subordinated Debt Securities will be issued under an indenture to be entered
into among XCE, us and the trustee named in the prospectus supplement. We have
summarized certain general features of the Debt Securities from the indentures.
We encourage you to read the indentures (which are exhibits to the Registration
Statement or, in the case of Subordinated Debt Securities, will be filed with
the Commission prior to the time XCE or we offer any Subordinated Debt
Securities) and our recent periodic and current reports that we file with the
Commission. The following summaries of certain provisions of the indentures do
not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of the indentures and the
provisions of the Trust Indenture Act of 1939, as amended (the "TIA").
Capitalized terms used but not defined shall have the meanings assigned to such
terms in the indentures. References in parentheticals below to sections or
articles are to Sections or Articles of the Indenture.
The following description of the terms of the Debt Securities and the
Guaranties sets forth certain general terms and provisions of the Debt
Securities and Guaranties to which any prospectus supplement may relate. The
particular terms of the Debt Securities and Guaranties offered by any prospectus
supplement and the extent, if any, to which such general provisions may apply to
the Debt Securities and Guaranties will be described in the related prospectus
supplement. Accordingly, for a description of the terms of a particular issue of
Debt Securities, reference must be made to both the related prospectus
supplement and to the following description.
6
<PAGE> 8
The indentures do not contain any covenants or provisions which may afford
holders of Senior Debt Securities protection in the event of a highly leveraged
transaction by either of the issuers. No such transaction is contemplated.
GENERAL
The aggregate principal amount of Debt Securities that may be issued under
the indentures is unlimited. The Debt Securities may be issued in one or more
series as may be authorized from time to time by the applicable Issuer. Xerox
will irrevocably and unconditionally guarantee payments of principal, premium,
if any, and interest, if any, with respect to Debt Securities issued by XCE.
Reference is made to the applicable prospectus supplement for the following
terms of the Debt Securities (if applicable):
- title and aggregate principal amount;
- indenture under which the Debt Securities are issued;
- any applicable subordination provisions;
- percentage or percentages of principal amount at which such securities
will be issued;
- maturity date(s);
- interest rate(s) or the method for determining the interest rate(s);
- dates on which interest will accrue or the method for determining dates
on which interest will accrue and dates on which interest will be
payable;
- redemption or early repayment provisions;
- authorized denominations;
- form (registered and/or bearer);
- amount of discount with which such securities will be issued;
- whether such securities will be issued in whole or in part in the form of
one or more global securities;
- identity of the Depositary for global securities;
- whether a temporary security is to be issued with respect to such series
and, whether any interest payable prior to the issuance of a definitive
securities of the series will be credited to the account of the persons
entitled thereto;
- the terms upon which beneficial interests in a temporary global security
may be exchanged in whole or in part for beneficial Interests in a
definitive global security or for individual definitive securities and
the terms upon which such exchanges may be made;
- currency, currencies or currency units in which the purchase price for,
the principal of and any premium and any interest on, such securities
will be payable;
- time period within which, the manner in which and the terms and
conditions upon which the purchaser of the securities can select the
payment currency;
- securities exchange(s) on which the securities will be listed;
- whether any underwriter(s) will act as market maker(s) for the
securities;
- if not listed on a securities exchange and no underwriter(s) intends to
make a market in the securities, the nature of the exchange market for
the securities;
- extent to which a secondary market for the securities is expected to
develop;
7
<PAGE> 9
- additions to or changes in the Events of Default with respect to the
securities and any change in the right of the trustee or the holders to
declare the principal, premium and interest with respect to such
securities to be due and payable;
- whether securities issued by XCE will be entitled to the benefits of the
Guaranties or any other form of guaranty; and
- additional terms not inconsistent with the provisions of the Indenture.
One or more series of Debt Securities may be sold at a substantial discount
below their stated principal amount, bearing no interest or interest at a rate
which at the time of issuance is below market rates ("Discount Securities"). One
or more series of Debt Securities may be variable rate Debt securities that may
be exchanged for fixed rate Debt Securities. Federal income tax consequences and
special considerations applicable to any such series will be described in the
applicable prospectus supplement.
Debt Securities may be issued where the amount of principal and/or interest
payable is determined by reference to one or more currency exchange rates,
commodity prices, equity indices or other factors. Holders of such securities
may receive a principal amount or a payment of interest that is greater than or
less than the amount of principal or interest otherwise payable on such dates,
depending upon the value of the applicable currencies, commodities, equity
indices or other factors. Information as to the methods for determining the
amount of principal or interest, if any, payable on any date, the currencies,
commodities, equity indices or other factors to which the amount payable on such
date is linked and certain additional Federal income tax considerations will be
set forth in the prospectus supplement.
The term "Debt Securities" includes Debt Securities denominated in U.S.
dollars or, if specified in the applicable prospectus supplement, in any other
freely transferable currency or units based on or relating to foreign
currencies.
We expect most Debt Securities to be issued in fully registered form
without coupons and in denominations of $1,000 and any integral multiple
thereof. (Section 3.02) Subject to the limitations provided in the Indenture and
in the prospectus supplement, Debt Securities which are issued in registered
form may be transferred or exchanged at the office of the transfer agent
maintained in the Borough of Manhattan, The City of New York or the Principal
Corporate Trust Office of the trustee, without the payment of any service
charge, other than any tax or other governmental charge payable in connection
therewith. (Section 3.05)
XEROX GUARANTY
Xerox will irrevocably and unconditionally guarantee to each holder of Debt
Securities issued by XCE the due and punctual payment of the principal of, and
any premium and any interest on, those Debt Securities, when and as the same
becomes due and payable, whether at maturity, upon acceleration or otherwise. We
have:
- agreed that our obligations under the Guaranties, upon the occurrence and
continuance of an Event of Default with respect to any guaranteed Debt
Securities, will be as if we were principal obligor and not merely
surety, and will be enforceable irrespective of any invalidity,
irregularity or unenforceability of any series of guaranteed Debt
Securities or the Indenture and
- waived our right to require the trustee or the holders of guaranteed Debt
Securities to pursue or exhaust their legal or equitable remedies against
XCE prior to exercising their rights under the Guaranties.
GLOBAL SECURITIES
We expect the following provisions to apply to all Debt Securities.
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a depositary (the "Depositary") identified in the
8
<PAGE> 10
Prospectus Supplement. Global Securities will be issued in registered form and
in either temporary or definitive form. Unless and until it is exchanged in
whole or in part for the individual Debt Securities, a Global Security may not
be transferred except as a whole by the Depositary for such Global Security to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor of such Depositary or a nominee of such successor. (Sections
3.01, 3.03 and 3.05)
The specific terms of the depositary arrangement with respect to any Debt
Securities of a series and the rights of and limitations upon owners of
beneficial interests in a Global Security will be described in the prospectus
supplement. We expect that the following provisions will generally apply to
depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit, on its book-entry registration and transfer
system, the respective principal amounts of the individual Debt Securities
represented by such Global Security to the accounts of persons that have
accounts with such Depositary. Such accounts shall be designated by the dealers,
underwriters or agents with respect to the Debt Securities or by the issuer if
such Debt Securities are offered and sold directly by the issuer. Ownership of
beneficial interests in a Global Security will be limited to persons that have
accounts with the applicable Depositary ("participants") or persons that may
hold interests through participants. Ownership of beneficial interests in such
Global Security will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the applicable Depositary or its
nominee with respect to interests of participants and the records of
participants with respect to interests of persons other than participants. The
laws of some states require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of a Global Security, such Depositary or such nominee, as the
case may be, will be considered the sole owner or holder of the Debt Securities
represented by that Global Security for all purposes under the indenture
governing those Debt Securities. Except as provided below, owners of beneficial
interests in a Global Security will not be entitled to have any of the
individual Debt Securities of the series represented by that Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of any Debt Securities of such series in definitive form and will not
be considered the owners or holders thereof under the indenture governing such
Debt Securities.
Payments of principal, premium, if any, and interest, if any, on individual
Debt Securities represented by a Global Security registered in the name of a
Depositary or its nominee will be made to the Depositary or its nominee, as the
case may be, as the registered owner of the Global Security representing the
Debt Securities. None of the Issuers, the trustee for the Debt Securities, any
paying agent (a "Paying Agent"), or the Registrar for the Debt Securities will
have any responsibility or liability for any aspect of the records relating to
or payments made by the Depositary or any participants on account of beneficial
ownership interests of the Global Security for the Debt Securities or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
The issuers expect that the Depositary for a series of Debt Securities or
its nominee, upon receipt of any payment of principal, premium or interest in
respect of a permanent Global Security representing the Debt Securities,
immediately will credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such Global Security for the Debt Securities as shown on the records of the
Depositary or its nominee. The issuers also expect that payments by participants
to owners of beneficial interests in a Global Security held through such
participants will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of customers in bearer
form or registered in "street name". Such payments will be the responsibility of
such participants.
If the Depositary for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as depositary and a successor depositary is not
appointed by the applicable Issuer within 90
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days, the issuer will issue definitive Debt Securities of that series in
exchange for the Global Security or Securities representing that series of Debt
Securities. In addition, the applicable issuer may at any time and in its sole
discretion, subject to any limitations described in the Prospectus Supplement
relating to the Debt Securities, determine not to have any Debt Securities of a
series represented by one or more Global Securities, and, in such event, will
issue definitive Debt Securities of that series in exchange for the Global
Security or Securities representing that series of Debt Securities. If
definitive Debt Securities are issued, an owner of a beneficial interest in a
Global Security will be entitled to physical delivery of definitive Debt
Securities of the series represented by that Global Security equal in principal
amount to that beneficial interest and to have the Debt Securities registered in
its name. Definitive Debt Securities of any series so issued will be issued in
denominations, unless otherwise specified by the applicable issuer, of $1,000
and integral multiples thereof.
ASSIGNMENT
Each indenture provides that for so long as any of the Debt Securities of
XCE are outstanding, XCE may assign its obligations under any series of Debt
Securities to any other subsidiary of Xerox (the "Assignee"). Any Assignee shall
be treated as the successor to XCE with respect to such series of Debt
Securities. The conditions set forth under "Consolidation, Merger or Sale of
Assets of XCE" below, that would apply to the merger of XCE into such Assignee,
must be satisfied at the time of an assignment.
EVENTS OF DEFAULT, NOTICE AND WAIVER
Each indenture provides that, if an Event of Default in respect of any
series of Debt Securities of an issuer or any Guaranties thereof shall have
happened and be continuing, either the trustee or the holders of not less than
25% in principal amount of the outstanding Debt Securities of that series of
that issuer may declare the principal amount (or a portion thereof in the case
of certain Debt Securities of that issuer issued with an original issue
discount) of all the Debt Securities of that series of that issuer to be
immediately due and payable. (Section 7.02)
Each indenture defines Events of Default in respect of any series of Debt
Securities of an issuer or any Guaranties thereof as:
- default for 30 days in payment of any interest installment when due,
- default in payment of principal of or premium, if any, (including accrued
original issue discount, in the case of certain Debt Securities of such
issuer issued with original issue discount) on, or any sinking fund
installment or analogous obligation with respect to, Debt Securities of
such series of such issuer when due,
- default for 90 days after notice to such issuer or the Guarantor by the
trustee or by the holders of at least 25% in principal amount of the
outstanding Debt Securities of such series of such issuer in performance
of any covenant in such indenture in respect of the Debt Securities of
such series of such issuer,
- certain events of bankruptcy, insolvency and reorganization involving
such issuer or the Guarantor, and any other Event of Default provided for
with respect to the Debt Securities of such series of such issuer.
(Section 7.01)
The TIA provides that the trustee will, within 90 days after the occurrence
of a default in respect of any series of Debt Securities of an issuer or any
Guaranties thereof, give to the holders of that series notice of all uncured and
unwaived defaults known to it; provided that, except in the case of default in
the payment of principal of, premium, if any, or interest, if any, on, or any
sinking fund installment or analogous obligation with respect to, any of the
Debt Securities of that series, the trustee will be protected in withholding
such notice if it in good faith determines that the withholding of such notice
is in the interest of the holders of that series. The term "default" for the
purpose of this provision means any event which is, or after notice or lapse of
time or both would become, an Event of Default with respect to Debt Securities
of such series of such issuer or any Guaranties thereof.
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Each indenture provides that the holders of a majority in principal amount
of the outstanding Debt Securities of any series of an Issuer may, subject to
certain limitations, direct the time, method and place of conducting proceedings
for remedies available to the trustee, or exercising any trust or power
conferred on the trustee, in respect of the Debt Securities of that series of
that Issuer. (Section 7.11)
Each indenture contains provisions entitling the trustee, subject to the
duty of the trustee during an Event of Default in respect of any series of Debt
Securities of an issuer or any Guaranties thereof to act with the required
standard of care, to be indemnified by the holders of the Debt Securities of
that series of that issuer before proceeding to exercise any right or power
under the indenture at the request of holders of those Debt Securities. (Section
8.01)
Each indenture includes covenants that Xerox will file annually with the
trustee a certificate of no default, or specifying any default that exists.
(Section 5.04)
In certain cases, the holders of a majority in principal amount of the
outstanding Debt Securities of a series of an issuer may, on behalf of the
holders of all Debt Securities of that series of that issuer, waive any past
default or Event of Default, or compliance with certain provisions of the
indenture, except for defaults not theretofore cured in the payment of the
principal of, premium, if any, or interest on, or any sinking fund instalment or
analogous obligation with respect to, any of the Debt Securities of that series
of that issuer and compliance with certain covenants. (Sections 5.07, 7.02 and
7.12)
Each indenture provides that for purposes of calculating the principal
amount of Debt Securities of any series denominated in a foreign currency or in
units based on or relating to currencies thereunder, such principal amount shall
be deemed to be that amount of United States dollars that could be obtained for
such principal amount on the basis of a spot rate of exchange, specified to the
trustee by the applicable Issuer in an Officers' Certificate, for such currency
or currency units into United States dollars as of the date of any such
calculation. (Section 1.15)
ASSUMPTION BY THE COMPANY
Xerox may, at its option, assume the obligations of XCE as obligor under
any series of Debt Securities, provided, that:
- Xerox shall expressly assume such obligations in an assumption agreement
or supplemental indenture duly executed and delivered to the trustee in
form reasonably satisfactory to the trustee and
- immediately after giving effect to such assumption, no Event of Default,
and no event which, after notice or lapse of time, or both, would become
an Event of Default, shall have occurred and be continuing.
Upon any such assumption, Xerox shall succeed to, and be substituted for, and
may exercise every right and power of, XCE under that series of Debt Securities
and the indenture with the same effect as if Xerox had been the Issuer thereof,
and XCE shall be released from its liability as obligor under that series of
Debt Securities. (Section 10.05)
MODIFICATION OF THE INDENTURE
Each indenture contains provisions permitting the issuer, the Guarantor and
the trustee, with the consent of the holders of at least a majority in principal
amount of the outstanding Debt Securities of the affected series, to execute
supplemental indentures adding any provisions to or changing or eliminating any
of the provisions of the indenture or modifying the rights of the holders of
Debt Securities of that series. No supplemental indenture may, without the
consent of the Holders of all of the affected Debt Securities, among other
things:
- change the maturity of any Debt Securities,
- change the currency in which such Debt Securities are payable,
- reduce the principal amount thereof or any premium thereon,
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- reduce the rate or extend the time of payment of interest thereon,
- change the method of computing the amount of principal thereof on any
date, or
- reduce the percentage of holders of Debt Securities which must consent to
any such supplemental indenture. (Section 9.02)
SATISFACTION AND DISCHARGE OF THE INDENTURES; DEFEASANCE
The indenture shall generally cease to be of any further effect with
respect to a series of Debt Securities if:
- the issuer or the Guarantor has delivered to the trustee for cancellation
all Debt Securities of that series (with certain limited exceptions) or
- all Debt Securities of that series not theretofore delivered to the
trustee for cancellation shall have become due and payable, or are by
their terms to become due and payable within one year or are to be called
for redemption within one year, and the issuer or the Guarantor shall
have deposited with the trustee as trust funds the entire amount
sufficient to pay at maturity or upon redemption all Debt Securities of
that series (and if, in either case, the issuer or the Guarantor shall
also pay or cause to be paid all other sums payable under the Indenture
by such Issuer or Guarantor in respect of all Debt Securities of that
series and deliver to the trustee an officers' certificate and an opinion
of counsel, each stating that all conditions precedent in the indenture
have been complied with). (Section 11.01)
The trustee shall hold in trust all money deposited with it as described
above and shall apply the deposited money, in accordance with the provisions of
the Debt Securities of the defeased series and the indenture, to the payment,
either directly or through any Paying Agent, as the trustee may determine, to
the Persons entitled thereto, of principal, premium, if any, and interest for
whose payment such money has been deposited with the trustee. (Section 11.02)
SUBMISSION TO JURISDICTION AND SERVICE OF PROCESS
XCE submits for the exclusive benefit of the holders of its Debt Securities
to the non-exclusive jurisdiction of any United States Federal or New York State
court sitting in New York City, the Borough of Manhattan solely for the purpose
of any legal action or proceeding brought to enforce rights under its Debt
Securities and the indenture. As long as any of its Debt Securities remain
outstanding (unless all payments are then being made by Xerox under the
Guaranties), XCE shall either have an authorized agent or maintain an office in
New York State upon whom process may be served in any such legal action or
proceeding. Service of process upon XCE at its office or upon its agent with
written notice of such service mailed or delivered to XCE shall to the fullest
extent permitted by applicable law be deemed in every respect effective service
of process upon XCE in any such legal action or proceeding. XCE hereby appoints
Xerox Corporation, Xerox Square, 100 Clinton Avenue South, Rochester, New York,
14644, U.S.A., Attention: General Counsel, as its agent in New York State for
such purpose, and Xerox accepts such appointment. XCE covenants and agrees that
service of process in any legal action or proceeding may be made upon it at its
office, or upon its agent in New York State. XCE irrevocably waives and
irrevocably agrees not to raise any objection which it may now have or hereafter
to the laying of venue of any such actions or proceedings in any such court
referred to in this paragraph and any claim that any such actions or proceedings
have been brought in an inconvenient forum and further irrevocably agrees that a
judgment in any action or proceeding brought in any court referred to in this
paragraph shall be conclusive and binding upon it and may be enforced in the
courts of any other jurisdiction.
GOVERNING LAW
Each indenture, the Debt Securities and the Guaranties shall be construed
in accordance with and governed by the laws of the State of New York, without
giving effect to the principles thereof relating to conflicts of law (other than
Section 5-1401 of the General Obligations Law of the State of New York, and
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any successor statute or statutes); provided, however, that all matters
governing the authorization and execution of the indenture and the Debt
Securities of XCE shall be construed in accordance with and governed by the laws
of the jurisdiction of England and Wales.
LIMITATIONS AFFECTING SECURITY HOLDERS
Neither the law of England and Wales nor the organizational documents of
XCE imposes any restriction on the ability of non-United Kingdom holders to hold
or vote the Debt Securities.
PROVISIONS APPLICABLE ONLY TO SENIOR DEBT SECURITIES
RANKING
The Senior Debt Securities issued by Xerox and the Guaranties will be
unsecured obligations of Xerox, and will rank pari passu with all other
unsecured and unsubordinated debt of Xerox. The Senior Debt Securities issued by
XCE will be unsecured obligations of XCE, and will rank pari passu with all
other unsecured and unsubordinated debt of XCE.
COVENANTS
Limitations on Liens. So long as any of the Senior Debt Securities of
either issuer are outstanding, Xerox will not create or suffer to exist, or
permit any of its Restricted Subsidiaries to create or suffer to exist, any
lien, security interest or other charge or encumbrance, or any other type of
preferential arrangement, upon or with respect to any of its properties (other
than "margin stock" as that term is defined in Regulation U issued by the Board
of Governors of the Federal Reserve System), whether now owned or hereafter
acquired, or assign, or permit any of its Restricted Subsidiaries to assign, any
right to receive income, in each case to secure any Debt without making
effective provision whereby all of the Senior Debt Securities of each series
(together with, if Xerox shall so determine, any other Senior Debt of Xerox or
such Restricted Subsidiary then existing or thereafter created which is not
subordinate to the Senior Debt Securities) shall be equally and ratably secured
with the indebtedness or obligations secured by such security. Xerox or its
Restricted Subsidiaries may create or suffer to exist any lien, security
interest, charge, encumbrance or preferential arrangement of any kind in, of or
upon any of the properties or assets of Xerox or its Restricted Subsidiaries to
secure any Debt or Debts in an aggregate amount at any time outstanding not
greater than 20% of the Consolidated Net Worth of Xerox. The foregoing
restrictions shall not apply to any of the following:
- deposits, liens or pledges arising in the ordinary course of business to
enable Xerox or any of its Restricted Subsidiaries to exercise any
privilege or license or to secure payments of workers' compensation or
unemployment insurance, or to secure the performance of bids, tenders,
contracts (other than for the payment of money) or statutory landlords'
liens or to secure public or statutory obligations or surety, stay or
appeal bonds, or other similar deposits or pledges made in the ordinary
course of business;
- liens imposed by law or other similar liens, if arising in the ordinary
course of business, such as mechanic's, materialman's, workman's,
repairman's or carrier's liens, or deposits or pledges in the ordinary
course of business to obtain the release of such liens;
- liens arising out of judgments or awards against Xerox or any of its
Restricted Subsidiaries in an aggregate amount not to exceed the greater
of (a) 15% of the Consolidated Net Worth of Xerox or (b) the minimum
amount which, if subtracted from such Consolidated Net Worth, would
reduce such Consolidated Net Worth below $3.2 billion and, in each case,
with respect to which Xerox or such Restricted Subsidiary shall in good
faith be prosecuting an appeal or proceedings for review, or liens for
the purpose of obtaining a stay or discharge in the course of any legal
proceedings;
- liens for taxes if such taxes are not delinquent or thereafter can be
paid without penalty, or are being contested in good faith by appropriate
proceedings, or minor survey exceptions or minor encumbrances, easements
or restrictions which do not in the aggregate materially detract from
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the value of the property so encumbered or restricted or materially
impair their use in the operation of the business of Xerox or any
Restricted Subsidiary owning such property;
- liens in favor of any government or department or agency thereof or in
favor of a prime contractor under a government contract and resulting
from the acceptance of progress or partial payments under government
contracts or subcontracts thereunder;
- liens, security interests, charges, encumbrances, preferential
arrangements and assignments of income existing on the date of the
Indenture;
- purchase money liens or security interests in property acquired or held
by Xerox or any Restricted Subsidiary in the ordinary course of business
to secure the purchase price thereof or indebtedness incurred to finance
the acquisition thereof;
- liens or security interests existing on property at the time of its
acquisition;
- the rights of XCC relating to a certain reserve account established
pursuant to an operating agreement dated as of November 1, 1980, between
Xerox and XCC;
- the replacement, extension or renewal of any of the foregoing and
- liens on any assets of any Restricted Subsidiary of up to $500,000,000
incurred in connection with the sale or assignment of assets of such
Restricted Subsidiary for cash where the proceeds are applied to
repayment of Debt of such Restricted Subsidiary and/or invested by such
Restricted Subsidiary in assets which would be reflected as receivables
on the balance sheet of such Restricted Subsidiary. (Section 5.06)
"Consolidated Net Worth" means, at any time, as to a given entity, the sum
of the amounts appearing on the latest consolidated balance sheet of such entity
and its Subsidiaries, prepared in accordance with generally accepted accounting
principles consistently applied, as:
- the par or stated value of all outstanding capital stock (including
preferred stock),
- capital paid-in and earned surplus or earnings retained in the
business plus or minus cumulative translation adjustments,
- any unappropriated surplus reserves,
- any net unrealized appreciation of equity investments, and
- minorities' interests in equity of subsidiaries,
less treasury stock, plus, in the case of Xerox, $600,000,000.
"Debt" means:
- indebtedness for borrowed money or for the deferred purchase price of
property or services (excluding trade accounts payable incurred in the
ordinary course with a maturity of not greater than 90 days),
- obligations as lessee under capital leases,
- obligations under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire,
or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in either
of the immediately preceding bullet points (excluding obligations of
Xerox from time to time under a certain support agreement between Xerox
and XCC, and a certain support agreement between Xerox Canada Inc. and
Xerox Canada Finance Inc.), and
- the amount of unfunded benefit liabilities, as defined in Section 4001
(a)(18) of the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute or statute, under
plans covered by Title IV thereof.
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"Restricted Subsidiary" means any consolidated Subsidiary of Xerox from
time to time having a Consolidated Net Worth of at least $100 million; provided,
however, that "Restricted Subsidiary" does not include Xerox Financial Services,
Inc., XCC and any other corporation principally engaged in any business or
businesses other than development, manufacture and/or marketing of:
- business equipment (including, without limitation, reprographic, computer
(including software) and facsimile equipment),
- merchandise or
- services (other than financial services).
At the date hereof, Xerox Corporation has the following Restricted Subsidiaries:
Xerox do Brazil Ltda.; Xerox Canada Inc.; Xerox Canada Ltd.; Xerox Mexicana S.A.
de C.V.; Xerox Limited; Xerox Manufacturing (Nederland) BV; Intelligent
Electronics, Inc.; XESystems, Inc.; Xerox ColorgrafX Systems, Inc.; Xerox
Overseas Holdings Limited; Xerox Holdings (Bermuda) Limited; Xerox Investments
(Nederland) BV; Xerox Holdings (Ireland) Limited; Xerox (Europe) Limited; Xerox
UK Holdings Limited; Xerox (UK) Limited; Xerox China Investments (Bermuda)
Limited; XRO Limited; XRI Limited; RRXH Limited and RRXIL Limited.
"Subsidiary" means, as to any entity, any corporation of which more than
50% of the outstanding capital stock having ordinary voting power to elect a
majority of the Board of Directors of that corporation is at the time directly
or indirectly owned by that entity.
CONSOLIDATION, MERGER OR SALE OF ASSETS OF XEROX. Xerox shall not
consolidate with or merge into any other corporation or sell its assets
substantially as an entirety, unless:
- the corporation formed by such consolidation or into which Xerox is
merged or the corporation which acquires its assets is organized in the
United States and expressly assumes the due and punctual payment of the
principal of, premium, if any, and interest, if any, on all the Debt
Securities of Xerox and the Guaranties and the performance of every
covenant of the Indenture on the part of Xerox to be performed or
observed and
- immediately after giving effect to such transaction, no Event of Default,
and no event which, after notice or lapse of time, or both, would become
an Event of Default, shall have occurred and be continuing. (Section
10.01)
Upon any such consolidation, merger or sale, the successor corporation formed by
such consolidation or into which Xerox is merged or to which such sale is made
shall succeed to and be substituted for Xerox under the Indenture. (Section
10.02)
CONSOLIDATION, MERGER OR SALE OF ASSETS OF XCE. XCE shall not consolidate
with or merge into any other corporation or sell its assets substantially as an
entirety, unless:
- the corporation formed by such consolidation or into which XCE is merged
or the corporation which acquires its assets is organized in the United
States or in England and Wales and expressly assumes the due and punctual
payment of the principal of, premium, if any, and interest, if any, on
all the Debt Securities of XCE and the performance of every covenant of
the Indenture on the part of XCE to be performed or observed and
- immediately after giving effect to such transaction, no Event of Default,
and no event which, after notice or lapse of time, or both, would become
an Event of Default, shall have occurred and be continuing. (Section
10.02)
Notwithstanding the foregoing, XCE shall be entitled at any time to sell,
transfer or assign all or any part of its assets for fair value or grant any
interest therein to any person or persons in accordance with any Securitization
in relation to such assets (whether or not by XCE or any of its subsidiaries)
and to enter into any arrangements in connection therewith. (Section 10.02) Upon
any such consolidation, merger or sale, the successor corporation formed by such
consolidation, or into which XCE is merged or to which such sale is made shall
succeed to and be substituted for XCE under the Indenture. (Section 10.03)
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For the purposes of the immediately preceding paragraph, "Securitization"
means any financing (whether or not by XCE, involving the transfer, assignment
or charging for fair value of lease, trade and/or finance receivables and
whether or not involving the issue of securities) where payments of principal
and interest thereunder are derived principally either directly or after
conversion through one or more interest rate and/or currency swap agreements
from moneys receivable (for a fair value) under or in connection with such
lease, trade and/or finance receivables and where the proceeds of such financing
are applied in repayment of debt and/or invested in assets.
CONCERNING THE TRUSTEE
The issuers may from time to time maintain credit facilities, and have
other customary banking relationships with Citibank, N.A., the Trustee under the
Indenture.
PROVISIONS APPLICABLE ONLY TO SUBORDINATED DEBT SECURITIES
The Subordinated Debt Securities may be senior or junior to, or rank pari
passu with, the other subordinated obligations of the issuer and will be
subordinated to all existing and future "Senior Indebtedness" of the issuer.
Senior Indebtedness means, without duplication, the principal, premium (if any)
and unpaid interest on all present and future:
- indebtedness of the issuer for borrowed money,
- obligations of the issuer evidenced by bonds, debentures, notes or
similar instruments,
- all obligations of the issuer under
(x) interest rate swaps, caps, collars, options and similar
arrangements,
(y) any foreign exchange contract, currency swap contract, futures
contract, currency option contract or other foreign currency hedge,
and
(z) credit swaps, caps, floors, collars and similar arrangements,
- indebtedness incurred, assumed or guaranteed by the issuer in connection
with the acquisition by it or a subsidiary of any business, properties or
assets (except purchase-money indebtedness classified as accounts payable
under generally accepted accounting principles),
- obligations of the issuer as lessee under leases required to be
capitalized on the balance sheet of the lessee under generally accepted
accounting principles,
- reimbursement obligations of the issuer in respect of letters of credit
relating to indebtedness or other obligations of the issuer that qualify
as indebtedness or obligations of the kind referred to in the first five
bullet points above, and
- obligations of the issuer under direct or indirect guaranties in respect
of, and obligations (contingent or otherwise) to purchase or otherwise
acquire, or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in the
first six bullet points above.
Subordinated Debt Securities will not be subordinated to any indebtedness or
obligation if the instrument creating or evidencing the indebtedness or
obligation or pursuant to which it is outstanding provides that such
indebtedness or obligation is not superior in right of payment to the
Subordinated Debt Securities.
Other provisions applicable to Subordinated Debt Securities will be
described in a prospectus supplement.
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DESCRIPTION OF THE PREFERRED STOCK
XEROX PREFERRED STOCK
The following is a description of certain general terms and provisions of
our Preferred Stock. The particular terms of any series of Preferred Stock will
be described in a prospectus supplement. The following summary of terms of our
Preferred Stock is not complete. You should refer to the provisions of our
Restated Certificate of Incorporation and the certificate of amendment relating
to each series of the Preferred Stock (the "Certificate of Amendment"), which
will be filed with the Commission at or prior to the time of issuance of such
series of the Preferred Stock. We are authorized to issue up to 22,043,067
shares of Preferred Stock, par value $1.00 per share. As of December 31, 1998,
8,785,403 shares of Series B Convertible Preferred Stock were outstanding. All
of the Series B Convertible Preferred Stock is held by the trustee for the Xerox
Employee Stock Ownership Plan, and is convertible, at any time, at the option of
the trustee, into Xerox Common Stock at a predetermined price, which is subject
to adjustment. The holders of the Series B Convertible Preferred Stock have
dividend and liquidation rights prior to holders of the Common Stock, but
generally have voting rights equal to those of holders of the Common Stock.
Subject to limitations prescribed by law, the Board of Directors is
authorized at any time to:
- issue one or more series of Preferred Stock;
- determine the designation for any series by number, letter or title that
shall distinguish the series from any other series of Preferred Stock;
and
- determine the number of shares in any series.
The Board of Directors is authorized to determine, for each series of Preferred
Stock, and the prospectus supplement will set forth with respect to such series
the following information:
- the dividend rate (or method for determining the rate);
- any liquidation preference per share of that series of Preferred Stock;
- any conversion provisions applicable to that series of Preferred Stock;
- any redemption or sinking fund provisions applicable to that series of
Preferred Stock;
- any voting rights of that series of Preferred Stock; and
- the terms of any other preferences or rights applicable to that series of
Preferred Stock.
DIVIDENDS
Holders of Preferred Stock will be entitled to receive, when, as and if
declared by the Board of Directors, cash dividends at the rates and on the dates
as set forth in the prospectus supplement. Except as set forth below, no
dividends will be declared or paid on any series of Preferred Stock unless full
dividends for all series of Preferred Stock (including cumulative dividends
still owing, if any) have been or contemporaneously are declared and paid. When
those dividends are not paid in full, the shares of all series of Preferred
Stock will share ratably in the payment of dividends, in accordance with the
sums that would be payable on those shares if all dividends were declared and
paid in full. In addition, generally, unless all dividends on the Preferred
Stock have been paid, no dividends will be declared or paid on the Common Stock
and generally we may not redeem or purchase any Common Stock.
CONVERTIBILITY
No series of Preferred Stock will be convertible into, or exchangeable for,
other securities or property except as set forth in the applicable prospectus
supplement.
17
<PAGE> 19
REDEMPTION AND SINKING FUND
No series of Preferred Stock will be redeemable or receive the benefit of a
sinking fund except as set forth in the applicable prospectus supplement.
LIQUIDATION
In the event we voluntarily or involuntarily liquidate, dissolve or wind up
our affairs, the holders of each series of Preferred Stock will be entitled to
receive the liquidation preference per share specified in the prospectus
supplement plus an amount equal to accrued and unpaid dividends, if any, before
any distribution to the holders of Common Stock. If the amounts payable with
respect to Preferred Stock are not paid in full, the holders of Preferred Stock
will share ratably in any distribution of assets based upon the aggregate
liquidation preference for all outstanding shares for each series. After the
holders of shares of Preferred Stock are paid in full, they will have no right
or claim to any of our remaining assets.
VOTING
Except as indicated below or in the prospectus supplement, the holders of
Preferred Stock will not be entitled to vote. If the equivalent of six quarterly
dividends payable on any series of Preferred Stock is in default, the number of
directors constituting our Board of Directors will be increased by two and the
holders of such series of Preferred Stock, voting together as a class with all
other series of Preferred Stock entitled to vote on such election of directors,
will be entitled to elect those additional directors. In the event of such a
default, any holder of Preferred Stock may request that we call a special
meeting of the holders of Preferred Stock for the purpose of electing the
additional directors and we must call such a meeting within 20 days of such
request. If we fail to call such a meeting upon request, then any holder of
Preferred Stock can call a meeting. If all accumulated dividends on any series
of Preferred Stock have been paid in full, the holders of shares of such series
will no longer have the right to vote on directors and the term of office of
each director so elected will terminate and the number of our directors will,
without further action, be reduced by two.
The vote of the holders of two-thirds of the outstanding shares of each
series of Preferred Stock voting together as a class, is required to authorize
any amendment, alteration or repeal of the Restated Certificate of Incorporation
or any Certificate of Amendment which would adversely affect the powers,
preferences, or special rights of the Preferred Stock including authorizing any
class of stock with superior dividend and liquidation preferences.
MISCELLANEOUS
The holders of Preferred Stock will have no preemptive rights. The
Preferred Stock, when issued, will be fully paid and nonassessable. Shares of
Preferred Stock that we redeem or otherwise reacquire will resume the status of
authorized and unissued shares of Preferred Stock undesignated as to series, and
will be available for subsequent issuance. We may not repurchase or redeem less
than all of the Preferred Stock, pursuant to a sinking fund or otherwise, while
there is any dividend arrearage on the Preferred Stock. Neither the par value
nor the liquidation preference is indicative of the price at which the Preferred
Stock will actually trade on or after the date of issuance. Payment of dividends
on any series of Preferred Stock may be restricted by loan agreements,
indentures and other transactions we may enter into.
NO OTHER RIGHTS
The shares of a series of Preferred Stock will not have any preferences,
voting powers or relative, participating, optional or other special rights
except as set forth above or in the prospectus supplement, the Restated
Certificate of Incorporation or Certificate of Amendment or as otherwise
required by law.
18
<PAGE> 20
TRANSFER AGENT AND REGISTRAR
The transfer agent for each series of Preferred Stock will be described in
the prospectus supplement.
XCE PREFERRED STOCK
The general terms and provisions of the Preferred Stock to be issued by XCE
will be described in a prospectus supplement.
DESCRIPTION OF XEROX COMMON STOCK
The following description of Xerox' Common Stock is only a summary. We
encourage you to read our Restated Certificate of Incorporation and our
Shareholder Rights Plan, referred to below, which have been filed with the
Commission and are incorporated by reference into this Prospectus.
As of the date of this prospectus, we are authorized to issue up to
1,050,000,000 shares of Common Stock, $1.00 par value per share (the "Common
Stock"). As of December 31, 1998, 656,786,576 shares of Common Stock were
outstanding. This number has been adjusted to reflect the two-for-one stock
split distributed on February 23, 1999.
The Common Stock offered under this prospectus will be offered only upon
the conversion, exchange or redemption of our Debt Securities or Preferred
Stock. We may not issue Common Stock directly under this prospectus.
GENERAL
DIVIDEND RIGHTS AND RESTRICTIONS
Holders of our Common Stock are entitled to dividends as and when declared
by the Board of Directors out of the net assets legally available therefor. All
shares of Common Stock are entitled to participate equally in such dividends.
There are no restrictions on the payment of dividends or purchase or redemption
of our Common Stock under our Restated Certificate of Incorporation or by-laws
or any instrument to which we are a party, provided all dividends for past
periods and the dividends for the current quarter on any outstanding Preferred
Stock and retirement, purchase or sinking fund requirements thereon, if any,
have been paid or provided for, and subject further to the restrictions referred
to below.
VOTING RIGHTS
Each share of Common Stock is entitled to one vote per share, subject, to
the right of the holders of any outstanding Preferred Stock, if six quarterly
dividends (whether or not consecutive) thereon are in default, to elect, voting
as a class, two members of the Board of Directors, which right continues until
the default is cured. In addition, the separate vote or consent of the holders
of outstanding Preferred Stock may be required to authorize certain corporate
action. The holders of Xerox' Series B Convertible Preferred Stock generally
have voting rights equal to those of holders of Common Stock. Since the Common
Stock and Xerox Series B Convertible Preferred Stock do not have cumulative
voting rights, if they choose to do so, the holders of more than 50% of the
aggregate amount of shares of those stocks can elect all of the directors. In
such event, the holders of less than 50% of those shares cannot elect any
directors.
LIQUIDATION RIGHTS
Holders of our Common Stock are entitled upon the dissolution, liquidation
or winding up of Xerox, after the payment in full of all preferential amounts to
which the holders of any then-outstanding shares of Preferred Stock shall be
entitled, to receive pro rata the net assets of Xerox.
19
<PAGE> 21
PREEMPTIVE RIGHTS
Holders of our Common Stock do not possess preemptive rights or
subscription rights as to any additional issues of any class of the capital
stock or any of our other securities.
LIABILITY TO FURTHER CALLS OR ASSESSMENTS
All of our issued and outstanding Common Stock and Preferred Stock is fully
paid and nonassessable. The shares of Common Stock offered, when issued, will be
fully paid and nonassessable.
TRANSFER AGENT
Our Common Stock is listed and traded on the New York Stock Exchange and
the Chicago Stock Exchange under the symbol "XRX" and is also traded on the
Boston, Cincinnati, Pacific Coast, Philadelphia, London and Switzerland
exchanges. The transfer agent for the Common Stock is BankBoston, N.A., P.O. Box
8038, Boston, Massachusetts 02266-8038, (800) 828-6396, E-mail at website
www.equiserve.com.
PREFERRED STOCK PURCHASE RIGHTS
The Board of Directors of Xerox has adopted a Shareholder Rights Plan. Each
share of Common Stock has one half of a right (a "Right") attached to it.
Until the earlier of:
- 10 business days following the date of a public announcement that a
person or group has acquired beneficial ownership of 20 percent or more
of the aggregate amount of the outstanding voting Common Stock of Xerox
(the date of such public announcement, the "Stock Acquisition Date", and,
such person or group, an "Acquiring Person"), and
- 10 business days (or such later date as may be determined by our Board of
Directors) following the commencement of, or the first public
announcement of the intent to commence, a tender or exchange offer by a
person or group if, upon consummation of the offer, such person or group
would be an Acquiring Person (the earlier of such dates, the
"Distribution Date"), or earlier redemption or expiration of the Rights,
the Rights will be evidenced, with respect to the shares of Common Stock
outstanding, by the certificates representing such shares and will be
transferred with and only with the Common Stock. Certificates representing
shares of Common Stock (including the shares of Common Stock offered hereby)
which are issued upon transfer, replacement or new issuance of Common Stock
prior to the Distribution Date or earlier redemption or expiration of the Rights
will contain a legend evidencing the Rights and incorporating the Rights
Agreement by reference. As soon as practicable following the Distribution Date,
separate certificates representing the Rights ("Rights Certificates") will be
mailed to holders of record of Common Stock as of the close of business on the
Distribution Date and, thereafter, such separate Rights Certificates will trade
separately and will alone evidence the Rights. The Rights are not exercisable
until the Distribution Date and will expire on April 16, 2007. Until a Right is
exercised, the holder thereof will have no rights as a shareholder of Xerox,
including, without limitation, the right to vote or to receive dividends.
When the Rights become exercisable, each Right will entitle the registered
holder thereof to purchase from Xerox, at a price of $250.00, subject to
adjustment (the "Purchase Price"), one three-hundredth of a share of Series A
Cumulative Preferred Stock. If certain types of mergers, sales of assets or
other business combinations involving Xerox occur after the Rights become
exercisable, each Right will represent the right to purchase, at the Purchase
Price, common stock of the acquiring company having a market value then equal to
twice the Purchase Price. If (i) a person or group becomes an Acquiring person
(other than pursuant to a tender or exchange offer for all outstanding shares of
Common Stock at a price and on terms approved by a majority of the members of
our Board of Directors
20
<PAGE> 22
who are not officers of Xerox or affiliates of such Acquiring Person), or (ii)
an Acquiring Person acquires Xerox in a transaction in which Xerox and the
Common Stock survive, each Right not owned by such Acquiring Person will be
converted into the right to purchase, at the Purchase Price, the number of
shares of Common Stock that at that time have a market value then equal to twice
the Purchase Price.
Our Board of Directors may, at any time on or before the earlier of (x) the
Stock Acquisition Date and (y) the date on which the Rights shall expire,
authorize the redemption of all, but not less than all, of the then outstanding
Rights at a redemption price of $.01 per Right, as adjusted under certain
specified circumstances. Any of the provisions of the Rights Agreement may be
amended by our Board of Directors before the Rights become exercisable.
Thereafter, provisions of the Rights Agreement may be amended by our Board of
Directors:
- to cure any ambiguity,
- to lengthen or shorten any time period under the Rights Agreement or
- in any other manner that will not adversely affect the interest of the
holders of the Rights (other than the Acquiring Person).
The Rights have certain "anti-takeover" effects. The Rights may cause
substantial dilution to a person or group that attempts to acquire Xerox on
terms not approved by our Board of Directors, except pursuant to an offer
conditioned on a substantial number of Rights being acquired. Generally, the
Rights should not interfere with any merger or other business combination
approved by our Board of Directors prior to the time that there is an Acquiring
Person (at which time holders of the Rights become entitled to exercise their
Rights for shares of Common Stock at one-half the market price), since until
such time the Rights generally may be redeemed by our Board of Directors at $.01
per Right.
PLAN OF DISTRIBUTION
Each Issuer may sell the Securities being offered hereby in any one or more
of the following ways:
- directly to investors,
- to investors through agents,
- to broker-dealers as principals,
- through underwriting syndicates led by one or more managing underwriters
as such Issuer may select from time to time, or
- through one or more underwriters acting alone.
If an underwriter or underwriters are utilized in the sale, the specific
managing underwriter or underwriters with respect to the offer and sale of the
offered securities are set forth on the cover of the prospectus supplement
relating to such offered securities and the members of the underwriting
syndicate, if any, are named in the prospectus supplement.
Sales of the offered securities by underwriters may be in negotiated
transactions, at a fixed offering price or at various prices determined at the
time of sale. The prospectus supplement describes the method of reoffering by
the underwriters. The prospectus supplement also describes the discounts and
commissions to be allowed or paid to the underwriters, if any, all other items
constituting underwriting compensation, the discounts and commissions to be
allowed or paid to dealers, if any, and the exchanges, if any, on which the
securities offered thereby will be listed.
Each Issuer may authorize underwriters to solicit offers by certain
institutions to purchase Securities at the price set forth in the prospectus
supplement pursuant to Delayed Delivery Contracts providing for payment and
delivery at a future date.
If any Securities are sold pursuant to an Underwriting Agreement, the
several underwriters will ordinarily agree, subject to the terms and conditions
set forth therein to purchase all the securities offered
21
<PAGE> 23
by the accompanying prospectus supplement if any of such securities are
purchased. In the event of default by any underwriter, in certain circumstances,
the purchase commitments may be increased or the Underwriting Agreement may be
terminated.
Offers to purchase securities may be solicited directly by either of the
Issuers or by agents designated by either Issuer from time to time. Any such
agent, who may be deemed to be an underwriter as the term is defined in the
Securities Act of 1933 (the "Act"), involved in the offer or sale of the offered
securities in respect of which this Prospectus is delivered will be named, and
any commissions payable by either of the Issuers to such agent set forth, in a
prospectus supplement. Any such agent will ordinarily be acting on a best
efforts basis.
If a broker-dealer is utilized in the sale of the offered securities in
respect of which this Prospectus is delivered, the Issuers will sell such
offered securities to the dealer, as principal. The dealer may then resell such
offered securities to the public at varying prices to be determined by such
dealer at the time of resale.
Agents, broker-dealers or underwriters may be entitled under agreements
which may be entered into with an Issuer to indemnification or contribution by
that Issuer in respect of certain civil liabilities, including liabilities under
the Act, and may be customers of, engage in transactions with or perform
services for that Issuer in the ordinary course of business.
The place and time of delivery for the offered securities in respect of
which this Prospectus is delivered are set forth in the accompanying prospectus
supplement.
The offered securities may or may not be listed on a national securities
exchange. No assurances can be given that there will be a market for the offered
securities.
LEGAL OPINIONS
The validity of the Securities and the Guaranties to be offered by Xerox
will be passed upon for Xerox by Martin S. Wagner, Esq., Associate General
Counsel, Corporate, Finance and Ventures of Xerox. The due authorization,
execution and delivery of the Securities to be offered by XCE will be passed
upon for XCE by Carole Shephard, Esq., the Company Secretary of Xerox Overseas
and a Barrister in England. Certain other legal matters in connection with the
offerings contemplated herein will be passed upon for Xerox and XCE by Martin S.
Wagner, Esq., Associate General Counsel, Corporate, Finance and Ventures of
Xerox. Certain legal matters in connection with the offerings contemplated
herein will be passed upon for the underwriters, agents or dealers, as the case
may be, by Cravath, Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue, New
York, New York. Cravath, Swaine & Moore provides various legal services to Xerox
from time to time.
EXPERTS
The consolidated financial statements and schedule of Xerox Corporation and
consolidated subsidiaries as of December 31, 1997 and 1996, and for each of the
years in the three-year period ended December 31, 1997, have been incorporated
by reference herein and elsewhere in the Registration Statement, in reliance
upon the reports set forth therein of KPMG LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
22
<PAGE> 24
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
The following statement sets forth the expenses to be borne by the Company
in connection with the issuance and distribution of the Debentures.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee......... $1,112,000
Printing and Engraving...................................... 100,000
Fees of legal counsel to Agents............................. 20,000
Fees of Issuers' Independent Auditors....................... 125,000
Trustee Fees and Expenses (including counsel fees).......... 60,000
Rating Agency Fees.......................................... 1,400,000
----------
Total.................................................. $2,817,000
==========
</TABLE>
- ---------------
* The foregoing expenses, other than the Securities and Exchange Commission
Registration Fee, are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VII, Section 2 of Xerox' By-laws states:
"Indemnification of Directors and Officers: Except to the extent
expressly prohibited by law, the Company shall indemnify any person, made
or threatened to be made, a party in any civil or criminal action or
proceeding, including an action or proceeding by or in the right of the
Company to procure a judgment in its favor or by or in the right of any
other corporation of any type of kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or other
enterprise, which any Director or officer of the Company served in any
capacity at the request of the Company, by reason of the fact that he, his
testator or intestate is or was a Director of officer of the Company or
serves or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, in any capacity, against
judgments, fines, penalties, amounts paid in settlement and reasonable
expenses, including attorneys' fees, incurred in connection with such
action or proceeding, or any appeal therein, provided that no such
indemnification shall be required with respect to any settlement, unless
the Company shall have given its prior approval thereto. Such
indemnification shall include the right to be paid advances of any expenses
incurred by such person in connection with such action, suit or proceeding,
consistent with the provisions of applicable law. In addition to the
foregoing, the Company is authorized to extend rights to indemnification
and advancement of expenses to such persons by i) resolution of the
shareholders, ii) resolution of the Directors or iii) an agreement, to the
extent not expressly prohibited by law."
Reference is made to Sections 721 through 726 of the Business Corporation
Law of the State of New York.
The above provisions of Xerox' By-Laws provide for the indemnification of
directors and officers of subsidiaries of Xerox who are also directors or
officers of Xerox, to the same extent as directors and officers of Xerox. In
addition, paragraph 111 of XCE's Articles of Incorporation state:
"Subject to the provisions of [the Companies Act 1985], every director,
other officer or auditor of the company or person acting as a alternate director
shall be entitled to be indemnified out of the assets of the company against all
costs, charges, expenses, losses or liabilities which he may sustain or incur in
or about the execution of his duties to the company or otherwise in relation
thereto."
II-1
<PAGE> 25
ITEM 16. EXHIBITS.
EXHIBIT INDEX
<TABLE>
<S> <C> <C>
(1)(a) -- Form of Underwriting Agreement, incorporated by reference to
Exhibit (1)(a) to Xerox Corporation's Registration Statement
on Form S-3, Registration No. 33-44597.
(1)(b) -- Form of Selling Agency Agreement, incorporated by reference
to Exhibit (1)(b) to Xerox Corporation's Current Report on
Form 8-K dated March 10, 1992.
(4)(a)(1) -- Restated Certificate of Incorporation of Xerox Corporation
filed by the Department of New York on October 29, 1996,
incorporated by reference to Exhibit 3(a)(1) to Xerox
Corporation's Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 1996.
(4)(a)(2) -- By-Laws of Xerox Corporation, as amended through January 25,
1999, Incorporated by reference to Exhibit (2) to Xerox
Corporation's Registration Statement, Amendment 4 on Form
8-A dated January 23, 1999.
(4)(b)(1) -- Form of Indenture, incorporated by reference to Exhibit 4(a)
to Xerox Corporation's Registration Statement on Form S-3,
Registration No. 333-13179.
(4)(b)(2) -- Form of Indenture, incorporated by reference to Exhibit 4(b)
to Xerox Corporation's Registration Statement on Form S-3,
Registration No. 333-59355.
(4)(b)(3) -- Form of Indenture, incorporated by reference to Exhibit 4(b)
to Xerox Corporation's Registration Statement on Form S-3,
Registration No. 333-34333.
(4)(c)(1) -- Form of Debt Security, incorporated by reference to Exhibit
4(l) to Xerox Corporation's Registration Statement on Form
S-3, Registration No. 333-13179.
(4)(c)(2) -- Form of Debt Security, incorporated by reference to Exhibit
4(b) to Xerox Corporation's Registration Statement on Form
S-3, Registration No. 33-7415.
(4)(c)(3) -- Form of Debt Security, incorporated by reference to Exhibit
(1) to Xerox Corporation's Registration Statement on Form
8-A dated December 1, 1986 for its 8 1/8% Notes due 1996.
(4)(c)(4) -- Form of Debt Security, incorporated by reference to Exhibit
4(b) to Xerox Corporation's Registration Statement on Form
S-3, Registration No. 2-78982.
(4)(c)(5) -- Form of Debt Security, incorporated by reference to Exhibit
4(c) to Xerox Corporation's Registration Statement on Form
S-3, Registration No. 2-78982.
(4)(c)(6) -- Form of Debt Security, incorporated by reference to Exhibit
4(d) to Xerox Corporation's Registration Statement on Form
S-3, Registration No. 2-78982.
(4)(c)(7) -- Form of Debt Security, incorporated by reference to Exhibit
4(e) to Xerox Corporation's Registration Statement on Form
S-3, Registration No. 2-78982.
(4)(c)(8) -- Form of Debt Security, incorporated by reference to Exhibit
4(f) to Xerox Corporation's Registration Statement on Form
S-3, Registration No. 2-78982.
(4)(c)(9) -- Form of Debt Security, incorporated by reference to Exhibit
(4)(k) to Xerox Corporation's Current Report on Form 8-K
dated March 10, 1992.
(4)(c)(10) -- Form of Debt Security, incorporated by reference to Exhibit
(4)(k) to Xerox Corporation's Current Report on Form 8-K
dated May 25, 1994.
(4)(c)(11) -- Form of Convertible Debt Security, incorporated by reference
to Exhibit 4(b) to Xerox Corporation's Registration
Statement on Form S-3, Registration No. 333-59355.
(4)(c)(12) -- Additional Forms of Debt Securities Incorporated by
reference to Xerox Corporation's subsequently filed reports
on Form 8-K.
(4)(d) -- Novated and Restated Subscription Agreement dated October
31, 1997 between Xerox Capital (Europe) plc and Xerox
Overseas Holdings Limited.*
</TABLE>
II-2
<PAGE> 26
<TABLE>
<S> <C> <C>
(5)(a) -- Opinion of Martin S. Wagner, Esq., as to legality of the Securities and certain other legal
matters.*
(5)(b) -- Opinion of Carole Shephard, Esq., as to legality of the Securities of XCE.*
(12) -- Computation of Ratio of Earnings to Fixed Charges of Xerox Corporation.*
(23)(a) -- Consent of Independent Auditors (see page II.6).
(23)(b) -- Consent of Martin S. Wagner, Esq. (see Exhibit 5(a)).
(23)(c) -- Consent of Carole Shephard, Esq. (see Exhibit 5(b)).
(24)(a) -- Certified Resolution of the Board of Directors of Xerox Corporation.*
(24)(b) -- Certified Resolution of the Board of Directors of XCE.*
(24)(c) -- Power of Attorney of Xerox Corporation.*
(24)(d) -- Power of Attorney of XCE.*
(25) -- Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 on Form T-1 of
Citibank, N.A., to act as Trustee under the Indenture.*
</TABLE>
* Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales of the
securities registered hereby are being made, a post-effective amendment to
the registration statement: (i) to include any prospectus required by
section 10(a)(3) of the Securities Act of 1933 (the "Act"); (ii) to reflect
in the prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement;
notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 42(b), if, in
the aggregate, the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and (iii) to include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement, provided, however, that paragraphs (i) and (ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Company
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Act,
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 the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(5) The undersigned registrants hereby undertake to file an
application for the purpose of determining the eligibility of the trustee
to act under subsection (1) of Section 310 of the Trust
II-3
<PAGE> 27
Indenture Act in accordance with the rules and regulations prescribed by
the Commission under Section 305(b)(2) of the Act.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described under Item 15 above, or otherwise, the
registrants have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrants 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 registrants will, unless in the opinion of their counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by them is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE> 28
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 amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Stamford and State of Connecticut, on the 10th day of March, 1999.
XEROX CORPORATION
(Registrant)
By: /s/ PAUL A. ALLAIRE*
------------------------------------
(Chairman of the Board and
Chief Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this amendment
has been signed by the following persons in the capacities indicated on March
10, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
Principal Executive Officer:
PAUL A. ALLAIRE* Chairman of the Board, Chief Executive and Director
Principal Financial Officer:
BARRY D. ROMERIL* Executive Vice President and Chief Financial Officer
Principal Accounting Officer:
PHILIP D. FISHBACH* Vice President and Controller
Directors:
ANTONIA AX:SON JOHNSON
VERNON E. JORDAN, JR.
YOTARO KOBAYASHI
HILMAR KOPPER
RALPH S. LARSEN
N. T. NICHOLAS, JR.
JOHN E. PEPPER
PATRICIA F. RUSSO
MARTHA R. SEGER
THOMAS C. THEOBALD
G. RICHARD THOMAN
</TABLE>
*
* By: /s/ MARTIN S. WAGNER
----------------------------
(Martin S. Wagner,
Attorney-in-fact)
II-5
<PAGE> 29
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 amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Stamford and State of Connecticut, on the 10th day of March, 1999.
XEROX CAPITAL (EUROPE) PLC
(Registrant)
By: /s/ W.R. GOODE*
------------------------------------
(Director)
By: /s/ P.H. PONCHON*
------------------------------------
(Director)
Pursuant to the requirements of the Securities Act of 1933, this amendment
has been signed by the following persons in the capacities indicated on March
10, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
W.R. GOODE* Director (Principal Executive Officer)
P.H. PONCHON* Director (Principal Financial and Accounting Officer)
D.N. MAW* Director
E.M. FILTER* Director
</TABLE>
* By: /s/ MARTIN S. WAGNER
----------------------------
(Martin S. Wagner
Attorney-in-Fact)
II-6
<PAGE> 30
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Xerox Corporation:
We consent to the use of our reports incorporated herein by reference and
to the reference to our firm under the heading "Experts" in the Prospectus.
KPMG LLP
Stamford, Connecticut
March 10, 1999
II-7
<PAGE> 31
EXHIBIT INDEX
<TABLE>
<S> <C> <C>
(1)(a) -- Form of Underwriting Agreement, incorporated by reference to
Exhibit (1)(a) to Xerox Corporation's Registration Statement
on Form S-3, Registration No. 33-44597.
(1)(b) -- Form of Selling Agency Agreement, incorporated by reference
to Exhibit (1)(b) to Xerox Corporation's Current Report on
Form 8-K dated March 10, 1992.
(4)(a)(1) -- Restated Certificate of Incorporation of Xerox Corporation
filed by the Department of New York on October 29, 1996,
incorporated by reference to Exhibit 3(a)(1) to Xerox
Corporation's Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 1996.
(4)(a)(2) -- By-Laws of Xerox Corporation, as amended through January 25,
1999, Incorporated by reference to Exhibit (2) to Xerox
Corporation's Registration Statement, Amendment 4 on Form
8-A dated January 23, 1999.
(4)(b)(1) -- Form of Indenture, incorporated by reference to Exhibit 4(a)
to Xerox Corporation's Registration Statement on Form S-3,
Registration No. 333-13179.
(4)(b)(2) -- Form of Indenture, incorporated by reference to Exhibit 4(b)
to Xerox Corporation's Registration Statement on Form S-3,
Registration No. 333-59355.
(4)(b)(3) -- Form of Indenture, incorporated by reference to Exhibit 4(a)
to Xerox Corporation's Registration Statement on Form S-3,
Registration No. 333-34333.
(4)(c)(1) -- Form of Debt Security, incorporated by reference to Exhibit
4(l) to Xerox Corporation's Registration Statement on Form
S-3, Registration No. 333-13179.
(4)(c)(2) -- Form of Debt Security, incorporated by reference to Exhibit
4(b) to Xerox Corporation's Registration Statement on Form
S-3, Registration No. 33-7415.
(4)(c)(3) -- Form of Debt Security, incorporated by reference to Exhibit
(1) to Xerox Corporation's Registration Statement on Form
8-A dated December 1, 1986 for its 8 1/8% Notes due 1996.
(4)(c)(4) -- Form of Debt Security, incorporated by reference to Exhibit
4(b) to Xerox Corporation's Registration Statement on Form
S-3, Registration No. 2-78982.
(4)(c)(5) -- Form of Debt Security, incorporated by reference to Exhibit
4(c) to Xerox Corporation's Registration Statement on Form
S-3, Registration No. 2-78982.
(4)(c)(6) -- Form of Debt Security, incorporated by reference to Exhibit
4(d) to Xerox Corporation's Registration Statement on Form
S-3, Registration No. 2-78982.
(4)(c)(7) -- Form of Debt Security, incorporated by reference to Exhibit
4(e) to Xerox Corporation's Registration Statement on Form
S-3, Registration No. 2-78982.
(4)(c)(8) -- Form of Debt Security, incorporated by reference to Exhibit
4(f) to Xerox Corporation's Registration Statement on Form
S-3, Registration No. 2-78982.
(4)(c)(9) -- Form of Debt Security, incorporated by reference to Exhibit
(4)(k) to Xerox Corporation's Current Report on Form 8-K
dated March 10, 1992.
(4)(c)(10) -- Form of Debt Security, incorporated by reference to Exhibit
(4)(k) to Xerox Corporation's Current Report on Form 8-K
dated May 25, 1994.
(4)(c)(11) -- Form of Convertible Debt Security, incorporated by reference
to Exhibit 4(b) to Xerox Corporation's Registration
Statement on Form S-3, Registration No. 333-59355.
(4)(c)(12) -- Additional Forms of Debt Securities Incorporated by
reference to Xerox Corporation's subsequently filed reports
on Form 8-K.
(4)(d) -- Novated and Restated Subscription Agreement dated October
31, 1997 between Xerox Capital (Europe) plc and Xerox
Overseas Holdings Limited.*
(5)(a) -- Opinion of Martin S. Wagner, Esq., as to legality of the
Securities and certain other legal matters.*
</TABLE>
<PAGE> 32
<TABLE>
<S> <C> <C>
(5)(b) -- Opinion of Carole Shephard, Esq., as to the legality of the Securities of XCE.*
(12) -- Computation of Ratio of Earnings to Fixed Charges of Xerox Corporation.*
(23)(a) -- Consent of Independent Auditors (see page II.6).
(23)(b) -- Consent of Martin S. Wagner, Esq. (see Exhibit 5(a)).
(23)(c) -- Consent of Carole Shephard, Esq. (see Exhibit 5(b)).
(24)(a) -- Certified Resolution of the Board of Directors of Xerox Corporation.*
(24)(b) -- Certified Resolution of the Board of Directors of XCE.*
(24)(c) -- Power of Attorney of Xerox Corporation.*
(24)(d) -- Power of Attorney of XCE.*
(25) -- Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 on Form T-1 of
Citibank, N.A., to act as Trustee under the Indenture.*
* Previously filed.
</TABLE>
