<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 5, 1996
REGISTRATION NO. 333-11777
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
THE BOEING COMPANY
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 91-0425694
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
------------------------
7755 EAST MARGINAL WAY SOUTH, SEATTLE, WASHINGTON 98108
(206) 655-2121
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
------------------------
HEATHER HOWARD
Corporate Secretary and Corporate Counsel
7755 East Marginal Way South
Seattle, Washington 98108
(206) 655-7531
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------
COPY TO:
ALLEN FINKELSON
Cravath, Swaine & Moore
825 Eighth Avenue
New York, NY 10019
(212) 474-1000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the Registration Statement becomes effective
and all other conditions to the merger of Boeing NA, Inc. with and into Rockwell
International Corporation pursuant to the Agreement and Plan of Merger described
in the enclosed Prospectus have been satisfied or waived.
------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. / /
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
$1,600,000,000
THE BOEING COMPANY
GUARANTEE
----------------
Subject to the satisfaction or waiver of certain conditions described below,
The Boeing Company ("Boeing" or the "Company") hereby offers its senior,
unsecured guarantee (the "Guarantee") to Record Holders (as defined below) of
the following series of senior, unsecured debt securities issued by Rockwell
International Corporation ("Rockwell"):
$300,000,000 7 5/8% NOTES DUE FEBRUARY 17, 1998
$300,000,000 8 7/8% NOTES DUE SEPTEMBER 15, 1999
$200,000,000 8 3/8% NOTES DUE FEBRUARY 15, 2001
$300,000,000 6 3/4% NOTES DUE SEPTEMBER 15, 2002
$200,000,000 7 7/8% NOTES DUE FEBRUARY 15, 2005
$300,000,000 6 5/8% NOTES DUE JUNE 1, 2005
The foregoing debt securities are referred to collectively as the
"Securities", and each series thereof is referred to as a "Series of
Securities".
The Guarantee is offered in conjunction with the consent solicitations
(collectively, the "Solicitations") made by Boeing and Rockwell to the Record
Holders of the Securities pursuant to the Consent Solicitation Statement
delivered with this Prospectus (the "Statement"). The conditions to the offering
of the Guarantee include the due execution and delivery by all parties thereto
of a Second Supplemental Indenture with respect to the Securities (the
"Supplemental Indenture") containing, among other things, the Proposed
Amendments (as defined under "Description of the Solicitations" below) with
respect to which consents are sought by Boeing and Rockwell in the Solicitations
and the occurrence of the Effective Time (as defined under "Description of the
Guarantee" below). See "Description of the Guarantee-- Conditions to the
Effectiveness of the Guarantee" below.
The Guarantee will be embodied in the Supplemental Indenture. It is intended
that the Supplemental Indenture will be executed on or shortly after the date of
receipt of the Requisite Consents (as defined under "Description of the
Solicitations" below) with respect to each Series of Securities but not prior to
the Relevant Expiration Date (as defined under "Description of the
Solicitations" below). The Supplemental Indenture will become binding in
accordance with its terms upon execution, but the Proposed Amendments and the
Guarantee will not become effective until the Effectiveness Date (as defined
under "Description of the Guarantee--Conditions to the Effectiveness of the
Guarantee" below).
The Company will not receive any cash proceeds in connection with the
offering of the Guarantee. The Guarantee is being offered solely by Boeing and
not by Rockwell or New Rockwell (as defined under "Description of the Proposed
Transactions" below), and this registration statement has been filed and
prepared by Boeing.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is November 5, 1996.
<PAGE>
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER
CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR BY ANY AGENT, UNDERWRITER OR DEALER. NEITHER THE DELIVERY OF THIS PROSPECTUS,
NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATES AS OF WHICH INFORMATION IS GIVEN IN THIS PROSPECTUS. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN WHICH
SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH
OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. THIS PROSPECTUS DOES NOT CONSTITUTE
AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY ANY SECURITY.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "1934 Act") and in accordance therewith files reports
and other information with the Securities and Exchange Commission (the
"Commission"). Such reports and other information can be inspected and copied at
the public reference facilities maintained by the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549, as well as the Regional Offices of the Commission
at 500 West Madison Street, Chicago, Illinois 60661 and 7 World Trade Center,
New York, New York 10048 and copies can be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. The Commission maintains a Web site that contains reports,
proxy and information statements and other information regarding registrants
that file electronically with the Commission and the address of such site is
http://www.sec.gov. Reports and other information concerning the Company can
also be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005, on which certain of the Company's securities
are listed.
PRIVATE SECURITIES LITIGATION REFORM ACT SAFE HARBOR STATEMENT. When used
in this Prospectus, the words "estimate", "project", "intend", "expect" and
similar expressions are intended to identify forward-looking statements. Such
statements are subject to risks and uncertainties that could cause actual
results to differ materially from those contemplated in such forward-looking
statements. Readers are cautioned not to place undue reliance on these
forward-looking statements, which speak only as of the date hereof. Such risks
and uncertainties include the risks, uncertainties and risk factors identified
under the heading "Forward-Looking Information Is Subject to Risk and
Uncertainty" accompanying "Management's Discussion and Analysis of Results of
Operations, Financial Condition and Business Environment" which is in the
Company's 1995 Annual Report to Shareholders and which is incorporated by
reference in the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995. Boeing does not undertake any obligation to publicly release
any revisions to these forward-looking statements to reflect events or
circumstances after the date hereof or to reflect the occurrence of
unanticipated events.
DOCUMENTS INCORPORATED BY REFERENCE
There are hereby incorporated in this Prospectus by reference the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1995 and the
Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31,
1996 and June 30, 1996 heretofore filed with the Commission pursuant to the 1934
Act, to which reference is hereby made and the financial statements of the
Aerospace and Defense business of Rockwell (the "A&D Business") included in the
Company's Registration Statement on Form S-4 (file number 333-15001) heretofore
filed with the Commission under the Securities Act of 1933 (the "Form S-4"), to
which reference is hereby made.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the 1934 Act after the date of this Prospectus and prior to the
termination of the offering of the Guarantee, shall be deemed to be incorporated
in this Prospectus by reference and to be a part hereof from the date of filing
of
2
<PAGE>
such documents. Any statement contained in a document or report incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document that also is or is deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute part of this Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus has been
delivered, on the written or oral request of such person, a copy of any or all
of the documents referred to above which have been or may be incorporated in
this Prospectus by reference, other than exhibits to such documents, unless such
exhibits are specifically incorporated by reference into such documents.
Requests for such copies should be directed to Heather Howard, Corporate
Secretary and Corporate Counsel, The Boeing Company, P.O. Box 3707, Mail Stop
10-13, Seattle, WA 98124. Telephone requests may be directed to the Corporate
Secretary at (206) 655-7531.
------------------------
THE COMPANY
The Company is one of the world's major aerospace firms. The Company
operates in two principal industries: commercial aircraft, and defense and
space. Commercial aircraft operations--conducted through Boeing Commercial
Airplane Group--involve development, production and marketing of commercial jet
transports, and providing related support services to the commercial airline
industry worldwide. Defense and space operations--conducted through Boeing
Defense & Space Group--involve research, development, production, modification
and support of military aircraft and helicopters and related systems, space
systems and missile systems. Defense and space sales are principally through
U.S. Government contracts.
The address of the principal executive offices of the Company is 7755 East
Marginal Way South, Seattle, Washington 98108. The mailing address is P.O. Box
3707, Seattle, Washington 98124. The telephone number of the Company is (206)
655-2121.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth information with respect to the Company's
consolidated ratio of earnings to fixed charges for the periods indicated:
<TABLE>
<CAPTION>
SIX MONTHS YEAR ENDED DECEMBER 31,
ENDED ----------------------------------------------
JUNE 30, 1996 1995 1994 1993 1992
----------------- ----- --------- ----- ---------
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges............................. 7.2 2.5 5.6 8.6 12.9
Ratio of Earnings to Fixed Charges Based on Pro Forma Condensed
Combined Statement of Net Earnings........................... 4.7 2.1
<CAPTION>
1991
---------
<S> <C>
Ratio of Earnings to Fixed Charges............................. 20.8
Ratio of Earnings to Fixed Charges Based on Pro Forma Condensed
Combined Statement of Net Earnings...........................
</TABLE>
The ratio of earnings to fixed charges represents the number of times that
fixed charges were covered by earnings. In computing the ratio, earnings consist
of net earnings plus federal taxes on income and fixed charges adjusted for
capitalized interest and amortization of previously capitalized interest, less
earnings accounted for by the equity method and not distributed. Fixed charges
consist of interest on borrowings, both expensed and capitalized, and that
portion of rentals representative of an interest factor. For a description of
the pro forma adjustments, see "Pro Forma Financial Statements" below.
USE OF PROCEEDS
The Company will not receive any cash proceeds from the issuance of the
Guarantee.
3
<PAGE>
DESCRIPTION OF THE GUARANTEE
GENERAL
The Guarantee is to be issued pursuant to the terms of the Supplemental
Indenture, a copy of which is filed as an exhibit to the Registration Statement
of which this Prospectus is a part. The Guarantee is offered in uncertificated
form, subject to the satisfaction or waiver of certain conditions described
below. See "Conditions to the Effectiveness of the Guarantee".
The Guarantee will provide that the Company unconditionally and irrevocably
guarantees the due and punctual payment of the principal of, premium, if any,
interest on, and all other amounts due under the Securities of each Series when
the same shall become due and payable, whether at maturity, pursuant to
mandatory or optional prepayments, by acceleration or otherwise, in each case
after any applicable grace periods or notice requirements, or both, according to
the terms of such Securities. The Guarantee will be unconditional irrespective
of the validity, regularity or enforceability of the applicable Securities, any
change or amendment thereto, the absence of any action to enforce the same, any
waiver or consent by the Trustee or the registered owners of the Securities with
respect to any provision thereof or the Indenture (as defined below), the
recovery of any judgment against Rockwell or any action to enforce the same, or
any other circumstances that may otherwise constitute a legal or equitable
discharge or defense of a guarantor. However, the Company will not waive
presentment or demand of payment or notice with respect to the Securities.
The Company will be subrogated to all rights against Rockwell of any Record
Holder in respect of any amounts paid by the Company pursuant to the provisions
of the Guarantee. However, the Company will only be entitled to enforce its
right of subrogation after the principal of and interest on the Securities and
all other amounts owed to the Record Holders of the Securities have been paid in
full. The Guarantee shall continue to be effective or reinstated, as the case
may be, if at any time any payment made by Rockwell is rescinded or must
otherwise be returned upon the insolvency, bankruptcy or reorganization of
Rockwell or the Company or otherwise. The Company will waive any right of
set-off or counterclaim it may have against registered owners of the Securities
arising from any other obligations any such registered owners may have to
Rockwell or the Company. Boeing covenants that the Guarantee will not be
discharged except by complete performance of the obligations contained in the
Securities and in the Guarantee.
Record Holders of Securities will receive a copy of the Guarantee from The
Chase Manhattan Bank (formerly known as Chemical Bank), as successor by merger
to Manufacturers Hanover Trust Company, as Trustee (the "Trustee"), under the
Indenture dated as of October 1, 1982, as amended, between Rockwell and the
Trustee (the "Indenture"). It will not be necessary for new certificates
evidencing such Securities to be issued.
CONDITIONS TO THE EFFECTIVENESS OF THE GUARANTEE
The Guarantee will not become effective unless and until the Effectiveness
Date has occurred. The "Effectiveness Date" is the date that (i) Boeing and
Rockwell have received the Requisite Consents with respect to each Series of
Securities, (ii) the Supplemental Indenture has been duly executed and delivered
by all parties thereto and (iii) the Effective Time (as defined in the Agreement
and Plan of Merger dated as of July 31, 1996 among Rockwell, Boeing and a
subsidiary of Boeing (the "Merger Agreement")) has occurred or is simultaneously
occurring.
The conditions to the consummation of the offering of the Guarantee are for
the sole benefit of Boeing, and such conditions may be asserted by Boeing in its
sole discretion regardless of the circumstances giving rise to such conditions
or may be waived by Boeing, in whole or in part, in its sole discretion. The
Board of Directors of Boeing has not made a decision as to which circumstances
would lead it to waive any such condition, and any such waiver would depend on
circumstances prevailing at the time of such
4
<PAGE>
waiver. Any determination by Boeing concerning the events described in this
paragraph shall be final and binding upon all persons.
COVENANTS IN THE GUARANTEE
The Guarantee will include the covenants described below:
LIMITATIONS ON LIENS. The Guarantee will provide that Boeing will not, and
will not permit any Subsidiary to, issue, assume or guarantee any notes, bonds,
debentures or other similar evidences of indebtedness for money borrowed
(referred to for purposes of this provision and the provision described below
under the caption "Limitations on Sale and Lease-Back Transactions" as
"indebtedness") secured by any mortgage, security interest, pledge or lien
(referred to for purposes of this provision and the provision described below
under the caption "Limitations on Sale and Lease-Back Transactions" as a
"mortgage") of or upon any Principal Property, or shares of capital stock or
evidences of indebtedness for borrowed money issued by any Subsidiary and owned
by Boeing or any Subsidiary whether owned at the date of the effectiveness of
the Supplemental Indenture or thereafter acquired, without making effective
provision, and Boeing in each case will make or cause to be made effective
provision, whereby Boeing's obligations under the Guarantee will be secured by
such mortgage equally and ratably with any and all other indebtedness thereby
secured, so long as such indebtedness is so secured (for the purpose of
providing such equal and ratable security the principal amount of Boeing's
obligations under the Guarantee will mean and will not be less than that
principal amount of the Securities that could be declared to be due and payable
pursuant to Section 5-2 of the Indenture on the date of the making of such
effective provision and the extent of such equal and ratable security shall be
adjusted as and when said principal amount changes over time pursuant to Section
5-2 and any other provision of the Indenture or the Securities). The restriction
described above will not apply to indebtedness secured by any of the following:
(1) mortgages on any property existing at the time of acquisition thereof or at
the date of the effectiveness of the Supplemental Indenture; (2) mortgages on
property of a corporation existing at the time such corporation is merged into
or consolidated with Boeing or a Subsidiary or a Subsidiary is merged into such
corporation or at the time of a sale, lease or other disposition of the
properties of such corporation (or a division thereof) as an entirety or
substantially as an entirety to Boeing or a Subsidiary, so long as such mortgage
is not extended to property owned by Boeing or such Subsidiary immediately prior
thereto; (3) mortgages on property of a corporation existing at the time such
corporation first becomes a Subsidiary; (4) mortgages securing indebtedness of a
Subsidiary to Boeing or to another Subsidiary; (5) mortgages on property to
secure all or part of the cost of acquiring, substantially repairing or
altering, constructing, developing or substantially improving all or any part of
such property, or to secure indebtedness incurred to provide funds for any such
purpose or for reimbursement of funds previously expended for any such purpose,
so long as the commitment of the creditor to extend the credit secured by any
such mortgage has been obtained not later than 120 days after the later of (a)
the completion of the acquisition, substantial repair or alteration,
construction, development or substantial improvement of such property or (b) the
placing in operation of such property or of such property as so substantially
repaired or altered, constructed, developed or substantially improved; (6)
mechanic's liens, tax liens, liens in favor of any governmental body to secure
progress, advance or other payments or the acquisition of real or personal
property from such governmental body pursuant to any contract or provision of
any statute, and other liens, charges and encumbrances incidental to
construction, to the conduct of business or the ownership of property of Boeing
or any Subsidiary which were not incurred in connection with the borrowing of
money or the obtaining of advances or credits or the acquisition of property and
do not in the aggregate materially impair the use of any Principal Property for
the purposes for which it is held or which are being contested in good faith by
Boeing or such Subsidiary; or (7) any extensions, renewal or replacement (or
successive extensions, renewals or replacements), in whole or in part, of any
mortgage referred to in the foregoing clauses (1) to (6), inclusive, so long as
the principal amount of indebtedness secured thereby and not otherwise
authorized by clauses (1) to (6) above, inclusive, does not exceed the principal
amount of
5
<PAGE>
indebtedness, plus any premium or fee payable in connection with any such
extension, renewal or replacement, so secured at the time of such extension,
renewal or replacement.
Notwithstanding the provisions described in the preceding paragraph, Boeing
or any Subsidiary may issue, assume or guarantee indebtedness secured by
mortgages which would otherwise be subject to the restrictions described in the
preceding paragraph in an aggregate amount which, together with all attributable
debt outstanding pursuant to the provision described in the second paragraph
under the caption "Limitations on Sale and Lease-Back Transactions" below and
all indebtedness outstanding pursuant to the provision described in this
paragraph, does not at the time of such issuance, assumption or guarantee of
secured indebtedness exceed 15% of Consolidated Net Tangible Assets.
LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS. The Guarantee will provide
that Boeing will not, nor will it permit any Subsidiary to, enter into any Sale
and Lease-Back Transaction with respect to any Principal Property (except for a
transaction providing for a lease for a term, including any renewal thereof, of
not more than three years, except for a transaction between Boeing and a
Subsidiary or between Subsidiaries and except for any lease of property acquired
after the date of the effectiveness of the Supplemental Indenture if the rent
payable by Boeing or such Subsidiary thereunder is to be reimbursed under a
contract with the government of the United States or any instrumentality or
agency thereof), if the commitment by or on behalf of the purchaser is obtained
more than 120 days after the later of (i) the completion of the acquisition,
substantial repair or alteration, construction, development or substantial
improvement of such Principal Property or (ii) the placing in operation of such
Principal Property or of such Principal Property as so substantially repaired or
altered, constructed, developed or substantially improved, unless either (x)
Boeing or such Subsidiary would be entitled pursuant to the provision described
in the first paragraph under the caption "Limitations on Liens" to issue, assume
or guarantee debt secured by a mortgage on such Principal Property without
equally and ratably securing Boeing's obligations under the Guarantee or (y)
Boeing applies or causes to be applied, in the case of a sale or transfer for
cash, an amount equal to the net proceeds thereof (but not in excess of the net
book value of such Principal Property at the date of such sale or transfer) and,
in the case of a sale or transfer otherwise than for cash, an amount equal to
the fair value (as determined by the Board of Directors) of the Principal
Property so leased to the retirement, within 180 days after the effective date
of such Sale and Lease-Back Transaction, of Securities, Boeing Securities or
other indebtedness of Boeing or a Subsidiary. Any such retirement of Securities
or Boeing Securities will be reduced by an amount equal to the sum of (A) an
amount equal to the principal amount of Securities or Boeing Securities
delivered within 180 days after the effective date of such Sale and Lease-Back
Transaction to the Trustee or the Boeing Indenture Trustee, as the case may be,
for retirement and cancellation (for purposes of making such calculation the
principal amount of Original Issue Discount Securities so retired or cancelled
will mean the portion thereof that could have been declared due and payable
pursuant to Section 502 of the Boeing Indenture at the time retired and
cancelled) and (B) the principal amount, plus any premium or fee paid in
connection with any redemption in accordance with the terms, of other
indebtedness voluntarily retired by Boeing within such 180-day period, excluding
retirements pursuant to prepayment provisions and payments at maturity.
Notwithstanding the provisions described in the preceding paragraph, Boeing
or any Subsidiary may enter into a Sale and Lease-Back Transaction which would
otherwise be subject to the restrictions described in the preceding paragraph so
as to create an aggregate amount of attributable debt which, together with all
indebtedness outstanding pursuant to the provision described in the second
paragraph under the caption "Limitations on Liens" and all attributable debt
outstanding pursuant to the provision described in this paragraph, does not at
the time of such Sale and Lease-Back Transaction exceed 15% of Consolidated Net
Tangible Assets. "Attributable debt" in respect of any Sale and Lease-Back
Transaction means, as of the time of the determination, the lesser of (i) the
sale price of the Principal Property so leased multiplied by a fraction the
numerator of which is the remaining portion of the base term of the lease
included in such transaction and the denominator of which is the base term of
such lease and (ii) the total obligation (discounted to present value at the
implicit interest factor, determined in accordance with
6
<PAGE>
generally accepted financial practice, included in the rental payments or, if
such interest factor cannot be readily determined, at a rate of interest of 10%
per annum, compounded semiannually) of the lessee for rental payments (other
than amounts required to be paid on account of property taxes as well as
maintenance, repairs, insurance, water rates and other items which do not
constitute payments for property rights) during the remaining portion of the
base term of the lease included in such transaction.
GUARANTEE EVENTS OF DEFAULT. A "Guarantee Event of Default" with respect to
a Series of Securities will be defined as: (1) default in the performance, or
breach, of any covenant or warranty of Boeing described under "Limitations on
Liens" or "Limitations on Sale and Lease-Back Transactions" above or under
"Consolidations and Mergers of Boeing and Conveyances Permitted Subject to
Certain Conditions" below, and continuance of such default or breach for a
period of 90 days after there has been given, by registered or certified mail,
to Boeing by the Trustee or to Boeing and the Trustee by the record holders of
at least 25% in principal amount of the outstanding Securities of such Series a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Guarantee Default"; or (2) the
entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of Boeing in an involuntary case or proceeding under
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging Boeing a bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of Boeing under any applicable
federal or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of Boeing or of any substantial
part of the property of Boeing, or ordering the winding up or liquidation of the
affairs of Boeing, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 90
consecutive days; or (3) the commencement by Boeing of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by Boeing to the entry of a
decree or order for relief in an involuntary case or proceeding under the
federal or state bankruptcy laws or to the commencement of any bankruptcy or
insolvency case or proceeding against Boeing, or the filing by Boeing of a
petition or answer or consent seeking reorganization or relief under any
applicable federal or state bankruptcy law, or the consent by Boeing to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of Boeing or of any substantial part of the property of Boeing, or the
making by Boeing of an assignment for the benefit of creditors, or the admission
by Boeing in writing of its inability to pay its debts generally as they become
due.
CONSOLIDATIONS AND MERGERS OF BOEING AND CONVEYANCES PERMITTED SUBJECT TO
CERTAIN CONDITIONS. The Guarantee will provide that Boeing may consolidate
with, or sell or convey all or substantially all its assets to, or merge into
any other corporation so long as, in any such case, (i) Boeing is the surviving
corporation, or the successor corporation is a corporation organized and
existing under the laws of the United States of America or a State thereof and
such corporation expressly assumes the due and punctual payment of all amounts
due under the Guarantee, and the due and punctual performance and observance of
all the covenants and conditions of the Guarantee to be performed by Boeing, by
a supplemental indenture executed and delivered to the Trustee by such
corporation and (ii) immediately after such merger or consolidation or such sale
or conveyance, no Payment Default or Guarantee Event of Default, and no event
which, after notice or lapse of time or both, would become a Payment Default or
Guarantee Event of Default has occurred and is continuing.
In case of any such consolidation, merger, sale or conveyance and upon any
such assumption by the successor corporation, such successor corporation will
succeed to and be substituted for Boeing with the same effect as if it had been
named in the Guarantee as the guarantor, and the predecessor corporation will be
relieved of any further obligation under the Guarantee.
The Trustee will receive an officers' certificate and an opinion of counsel
each stating that any such consolidation, merger, sale or conveyance, and any
such assumption, and all conditions precedent provided for in the Guarantee
relating to such transaction have been complied with.
7
<PAGE>
CERTAIN DEFINITIONS
The following definitions are applicable to the covenants described above:
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" shall have meanings correlative to
the foregoing.
"BOARD OF DIRECTORS" means the board of directors of Boeing or any committee
of such board duly authorized to act with respect to the Guarantee.
"BOEING INDENTURE" means the Indenture dated as of August 15, 1991 between
Boeing and The Chase Manhattan Bank (successor in interest to The Chase
Manhattan Bank (National Association)), as Trustee, as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental thereto entered into pursuant to the applicable provisions thereof,
and includes the terms of any series of Boeing Securities established as
contemplated by Section 301 thereof. However, if at any time more than one
Person is acting as Boeing Indenture Trustee thereunder, "Boeing Indenture"
means, with respect to any one or more series of Boeing Securities for which a
Person is Boeing Indenture Trustee, the Boeing Indenture as originally executed
or as it may from time to time be supplemented or amended by one or more
indentures supplemental thereto entered into pursuant to the applicable
provisions thereof and will include the terms of the or those particular series
of Boeing Securities for which such Person is Boeing Indenture Trustee
established as contemplated by Section 301 thereof, exclusive, however, of any
provisions or terms which relate solely to other series of Boeing Securities for
which such Person is Boeing Indenture Trustee, regardless of when such terms or
provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental thereto executed and delivered
after such Person had become such Boeing Indenture Trustee but to which such
Person, as such trustee, was not a party.
"BOEING INDENTURE TRUSTEE" means The Chase Manhattan Bank (successor in
interest to The Chase Manhattan Bank (National Association)) and, subject to the
provisions of Article Six of the Boeing Indenture, also includes its successors
and assigns, and, if at any time there is more than one Person acting as Boeing
Indenture Trustee thereunder, "Boeing Indenture Trustee", as used with respect
to the Boeing Securities of any series, means the Boeing Indenture Trustee with
respect to Boeing Securities of that series.
"BOEING SECURITIES" means "Securities" as defined in the first recital of
the Boeing Indenture and more particularly means any Boeing Securities
authenticated and delivered under the Boeing Indenture; PROVIDED, HOWEVER, that
if at any time there is more than one Person acting as Boeing Indenture Trustee
under the Boeing Indenture, "Boeing Securities", with respect to the series as
to which such Person is the Boeing Indenture Trustee, has the meaning stated in
the first recital of the Boeing Indenture and will more particularly mean Boeing
Securities authenticated and delivered under the Boeing Indenture, exclusive,
however, of Boeing Securities of any series as to which such Person is not
Boeing Indenture Trustee.
"CONSOLIDATED NET TANGIBLE ASSETS" means the aggregate amount at which the
assets of Boeing and all Subsidiaries are reflected, in accordance with
generally accepted accounting practices, on the asset side of the consolidated
balance sheet, as at the close of a monthly accounting period (selected by
Boeing) ending within 65 days next preceding the date of determination, of
Boeing and its Subsidiaries (after deducting all related depreciation,
amortization and other valuation reserves), except capital lease property
rights, and except goodwill, trade names, trademarks, patents, unamortized debt
discount and expenses and other like intangibles, and after deducting from such
amount current liabilities as reflected, in accordance with such practices, on
said balance sheet.
"ORIGINAL ISSUE DISCOUNT SECURITY" has the meaning assigned thereto in the
Boeing Indenture.
"PAYMENT DEFAULT" means an Event of Default referred to in Section 5-1(a),
(b) or (c) of the Indenture.
8
<PAGE>
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PRINCIPAL PROPERTY" means all real property and tangible personal property
constituting a manufacturing plant located within the United States owned by
Boeing or a Subsidiary, exclusive of (i) motor vehicles, mobile
materials-handling equipment and other rolling stock, (ii) office furnishings
and equipment, information and electronic data processing equipment, (iii) any
property financed through obligations issued by a state, territory or possession
of the United States, or any political subdivision or instrumentality of the
foregoing, on which the interest is not, in the opinion of tax counsel of
recognized standing or in accordance with a ruling issued by the Internal
Revenue Service, includible in gross income of the holder by reason of Section
103(a)(1) of the Internal Revenue Code (or any successor to such provision) as
in effect at the time of the issuance of such obligations, (iv) any real
property held for development or sale, or (v) any property the gross book value
of which (including related land and improvements thereon and all machinery and
equipment included therein without deduction of any depreciation reserves) is
less than 15% of Consolidated Net Tangible Assets or which the Board of
Directors determines is not material to the operation of the business of Boeing
and its Subsidiaries taken as a whole.
"SALE AND LEASE-BACK TRANSACTION" of a corporation means any arrangement
whereby (i) property has been or is to be sold or transferred by such
corporation to any Person with the intention on the part of such corporation of
taking back a lease of such property pursuant to which the rental payments are
calculated to amortize the purchase price of such property substantially over
the useful life of such property and (ii) such property is in fact so leased by
such corporation.
"SUBSIDIARY" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by Boeing or by one or more
other Subsidiaries, or by Boeing and one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock that ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
DESCRIPTION OF THE SOLICITATIONS
Boeing and Rockwell are soliciting consents ("Consents"), upon the terms and
subject to the conditions set forth in the Statement and the accompanying
Consent Letter (the "Consent Letter"), to proposed amendments (the "Proposed
Amendments") to the Indenture. The Proposed Amendments will delete or amend
certain provisions and covenants in the Indenture, including but not limited to
the following: (i) the mergers covenant will be deleted from the Indenture with
the result that New Rockwell will not be required to assume Rockwell's
obligations under the Securities or the Indenture following the Proposed
Transactions (as defined below) and Boeing North American, Inc. ("Boeing North
American"), the surviving corporation in the Merger (as defined below), will be
permitted to merge with, or convey its assets to, another corporation without
restriction, (ii) certain covenants and other provisions will be deleted from
the Indenture, (iii) the reporting covenant will be amended to require filings
of Boeing under the 1934 Act to be sent to the Trustee and (iv) a Guarantee
Event of Default will constitute an event of default with respect to the
applicable Series of Securities under the Indenture. Pursuant to the terms of
the Indenture, receipt by Boeing and Rockwell of validly delivered and unrevoked
Consents from Record Holders of a majority in principal amount of a Series of
Securities is required to approve the Proposed Amendments relating to such
Series of Securities (as to any Series of Securities, the "Requisite Consents").
The Proposed Amendments and the Guarantee will be embodied in a Supplemental
Indenture to be executed by Rockwell, Boeing and the Trustee. The Supplemental
Indenture will become binding in accordance with its terms upon execution, but
the Proposed Amendments and the Guarantee will only become effective upon the
Effectiveness Date.
Each of the Solicitations will expire at 5:00 p.m., New York City time, on
the Initial Expiration Date set forth in the Statement, unless extended. With
respect to each Solicitation, the term "Relevant Expiration Date" means the
Initial Expiration Date, or if such Solicitation is extended, the latest time
and
9
<PAGE>
date to which such Solicitation is extended. Each Solicitation may be extended
independently of any other Solicitation.
It is intended that the Supplemental Indenture will be executed on or
shortly after the date that the Requisite Consents with respect to each Series
of Securities have been obtained (but not prior to the Relevant Expiration
Date). The Indenture will remain in effect, without giving effect to the
Supplemental Indenture, including the Proposed Amendments and the Guarantee,
until (and subject to the occurrence of) the Effectiveness Date.
Only registered holders of each Series of Securities at the close of
business on the record date set forth in the Statement for determining the
holders of each Series of Securities entitled to consent to the Proposed
Amendments (the "Record Date") or their duly designated proxies, including
participants who hold Securities through The Depository Trust Company (as to
each such Series of Securities, the "Record Holders"), may consent to the
Proposed Amendments relating to such Series of Securities.
This Prospectus does not constitute part of the Solicitations, which are
constituted by, and fully described in, the Statement, the Consent Letter and
the other documents relating to the Solicitations that have been delivered by
Boeing to the Record Holders. This Prospectus relates solely to the offer by
Boeing, subject to the occurrence of the Effectiveness Date, of the Guarantee to
the Record Holders of the Securities.
DESCRIPTION OF THE PROPOSED TRANSACTIONS
Rockwell and Boeing intend to enter into a series of transactions whereby a
subsidiary of Boeing ("Merger Sub") will merge with and into Rockwell (the
"Merger"), which will then include only the A&D Business. Rockwell proposes to
effect a tax-free reorganization pursuant to which (i) Rockwell will contribute
(the "Contribution") substantially all of its businesses and assets, except the
A&D Business, to New Rockwell International Corporation, a Delaware corporation
and a newly-formed, wholly-owned subsidiary of Rockwell which, following the
consummation of the Merger, will be renamed "Rockwell International Corporation"
("New Rockwell"), or to one of several entities that will become wholly-owned
operating subsidiaries of New Rockwell, (ii) Rockwell will make a pro rata
distribution (the "Distribution") of all the issued and outstanding shares of
Common Stock, par value $1 per share, of New Rockwell and Class A Common Stock,
par value $1 per share, of New Rockwell (collectively, "New Rockwell Shares"),
including the preferred share purchase rights associated with such New Rockwell
Shares, to the holders of shares of Common Stock, par value $1 per share, of
Rockwell and Class A Common Stock, par value $1 per share, of Rockwell,
respectively, on a share-for-share basis and (iii) each share of the common
stock of Rockwell outstanding immediately prior to the Merger will be converted
in the Merger into a fraction of a share of common stock of Boeing determined
pursuant to a formula set forth in the Merger Agreement. Following the Merger,
Rockwell (then consisting of only the A&D Business) will be a wholly-owned
subsidiary of Boeing and will be renamed "Boeing North American, Inc." In
connection with the Contribution and the Merger, Rockwell will retain certain
liabilities, including, but not limited to, approximately $1.6 billion of
long-term debt of Rockwell constituting the Securities, and an additional $565
million of Rockwell short-term debt. Boeing has agreed to provide a full and
unconditional guarantee of the Securities and to assume or pay down the
additional $565 million of short-term debt. New Rockwell will not assume,
guarantee or otherwise be liable for any of Rockwell's obligations under the
Securities or the Indenture. The Contribution, the Distribution, the Merger and
the other transactions referred to in this paragraph are herein referred to as
the "Proposed Transactions."
PRO FORMA FINANCIAL STATEMENTS
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF FINANCIAL POSITION OF BOEING
The unaudited pro forma condensed combined statement of financial position
of Boeing is based on the historical consolidated statement of financial
position of Boeing and historical statement of assets and liabilities of the A&D
Business and is adjusted to give effect to the Merger using the purchase method
of accounting as well as consistent application of Boeing accounting practices.
The unaudited pro forma
10
<PAGE>
condensed combined statement of financial position has been prepared as if the
Proposed Transactions occurred on June 30, 1996. The purchase price has been
allocated to the assets and liabilities based upon preliminary estimates of
their respective fair values and does not give effect to any synergies.
The unaudited pro forma condensed combined statement of financial position
should be read in conjunction with the audited consolidated financial
statements, including the notes thereto, of Boeing for the year ended December
31, 1995, and the unaudited consolidated financial statements, including the
notes thereto, of Boeing in its Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1996, both of which are incorporated by reference herein
and the financial statements of the A&D Business and the notes thereto, included
in the Form S-4, which financial statements are incorporated by reference
herein. The pro forma condensed combined statement of financial position is not
necessarily indicative of the financial position of Boeing that would have
actually been obtained had the Proposed Transactions been consummated on June
30, 1996, nor is it necessarily indicative of any future financial position.
<TABLE>
<CAPTION>
JUNE 30, 1996
--------------------------------------------------
<S> <C> <C> <C> <C>
A&D PRO FORMA PRO FORMA
BOEING BUSINESS ADJUSTMENTS COMBINED
--------- ----------- ------------- -----------
<CAPTION>
(IN MILLIONS)
<S> <C> <C> <C> <C>
Cash and short-term investments............................. $ 5,640 $ 29 $ -- $ 5,669
Customer financing and accounts receivable.................. 1,448 679 -- 2,127
Inventories, net of advances and progress billings.......... 6,265 376 (120)(1) 6,521
Other current assets........................................ 651 120 63(7) 834
--------- ----------- ------ -----------
Total current assets.................................. $ 14,004 $ 1,204 $ (57) $ 15,151
Customer financing.......................................... 1,085 -- -- 1,085
Net property, plant and equipment........................... 6,351 550 --(9) 6,901
Goodwill.................................................... -- -- 2,474 2,474
Other assets................................................ 1,205 1,334 (336)(2) 2,296
(12)(3)
105(7)
--------- ----------- ------ -----------
Total assets.......................................... $ 22,645 $ 3,088 $ 2,174 $ 27,907
--------- ----------- ------ -----------
--------- ----------- ------ -----------
Accounts payable and other liabilities...................... $ 6,379 $ 724 $ 15(4) $ 7,163
(125)(5)
170(6)
Advances in excess of related costs......................... 660 147 -- 807
Income taxes payable........................................ 390 -- -- 390
Current debt................................................ 22 565 -- 587
--------- ----------- ------ -----------
Total current liabilities............................. 7,451 1,436 60 8,947
Accrued retiree health care................................. 2,503 1,357 (86)(5) 3,774
Long-term debt.............................................. 2,337 1,597 38(3) 3,972
--------- ----------- ------ -----------
Total liabilities..................................... 12,291 4,390 12 16,693
Shareholders' equity........................................ 10,354 -- 860(8) 11,214
--------- ----------- ------ -----------
Total liabilities and shareholders' equity............ $ 22,645 $ 4,390 $ 872 $ 27,907
--------- ----------- ------ -----------
--------- ----------- ------ -----------
</TABLE>
- ------------------------
(1) Adjustment to A&D Business inventory to conform to Boeing inventory
accounting practices and to eliminate intercompany profit. Differences in
inventory accounting practices between Boeing and Rockwell relate primarily
to the determination of which costs are included within a contract and
subject to subsequent recognition as cost of sales based on the estimated
average total contract cost and revenue. For example, Rockwell includes
general administrative and research and development
(FOOTNOTES CONTINUE ON FOLLOWING PAGE)
11
<PAGE>
costs in inventory for all contracts where such costs are recoverable;
Boeing includes such costs in inventory only to the extent recoverable under
flexibly priced contracts.
(2) Adjustment to record the excess of the fair value of pension plan assets
over the estimated pension obligations of the A&D Business at June 30, 1996
using actuarial assumptions consistent with those of the Boeing pension
plans. The A&D Business projected benefit obligation has been valued at
$6,815 million, and the fair value of the plan assets has been valued at
$7,718 million, resulting in a prepaid pension expense of $903 million.
(3) Adjustment to eliminate unamortized expenses relating to the A&D Business
acquired debt, and to restate the debt to fair value as of June 30, 1996.
(4) Adjustment to reflect transaction fees related to the acquisition of the A&D
Business.
(5) Adjustment to record the fair value of the A&D Business retiree health
obligation at June 30, 1996, and to conform classification to the Boeing
method of presentation. The A&D Business total accumulated retiree health
care obligation has been valued at $1,253 million.
(6) Adjustment to recognize estimated environmental remediation and other
liabilities acquired in conformity with Boeing accounting practices.
Although a substantial portion of the environmental remediation costs are
likely to be eventually recovered through U.S. Government contracts, the
Boeing policy is to immediately accrue and charge to current expense
identified exposures related to environmental remediation sites based on
conservative estimates of investigation, cleanup and monitoring costs to be
incurred. The accrual reflected herein is based on preliminary reviews and
estimates. Ongoing studies and expert analyses, to be updated subsequent to
closing, may result in the recognition of an accrued environmental
remediation liability that is materially different from the amount accrued
herein.
(7) Adjustment to reflect changes in deferred tax assets due to the impact of
adjustments (1) through (6) above.
(8) The value of the common stock of Boeing to be issued as a result of the
Merger, notwithstanding certain potential adjustments provided for in the
Merger Agreement.
(9) Based on preliminary estimates, management of Boeing does not believe the
historical property, plant and equipment values, in the aggregate, differ
materially from fair value of June 30, 1996.
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENTS OF NET EARNINGS OF BOEING
The unaudited pro forma condensed combined statements of net earnings of
Boeing are based on the historical consolidated statement of net earnings of
Boeing and of the A&D Business and are adjusted to give effect to the Merger
using the purchase method of accounting as well as a consistent application of
Boeing accounting practices. The unaudited pro forma condensed combined
statements of net earnings have been prepared as if the Proposed Transactions
occurred on January 1, 1995, and do not give effect to any synergies. The
unaudited pro forma condensed combined statement of net earnings for the year
ended December 31, 1995 is based upon the audited statement of net earnings of
Boeing for the year ended December 31, 1995 and the audited statement of income
of the A&D Business for the year ended September 30, 1995. The unaudited pro
forma condensed combined statement of net earnings for the six months ended June
30, 1996 is based upon the unaudited statement of net earnings of Boeing for the
six months ended June 30, 1996 and the unaudited statement of income of the A&D
Business for the six months ended March 31, 1996.
For the three month period ended June 30, 1996, sales for the A&D Business
were $798 million, and earnings from continuing operations for the A&D Business
were $57 million.
The unaudited pro forma condensed combined statements of net earnings should
be read in conjunction with the audited consolidated financial statements,
including the notes thereto, of Boeing in its Annual Report on Form 10-K for the
year ended December 31, 1995, and the unaudited consolidated financial
statements, including the notes thereto, of Boeing in its Quarterly Report on
Form 10-Q for the quarterly period ended June 30, 1996, both of which are
incorporated by reference herein and the financial statements of the A&D
Business and the notes thereto, included in the Form S-4, which financial
12
<PAGE>
statements are incorporated by reference herein. The unaudited pro forma
condensed combined statements of net earnings are not necessarily indicative of
the operating results of Boeing that would have actually been obtained had the
Proposed Transactions been consummated on January 1, 1995, nor are they
necessarily indicative of any future operating results.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1995
------------------------------------------------
<S> <C> <C> <C> <C>
A&D PRO FORMA PRO FORMA
BOEING BUSINESS ADJUSTMENTS COMBINED
--------- ----------- ----------- -----------
<CAPTION>
(IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
Sales and other operating revenues.................... $ 19,515 $ 3,238 $ (486)(1) $ 22,267
Costs and expenses.................................... 18,613 2,778 (486)(1) 21,166
83(2)
150(3)
28(4)
Early retirement program expense...................... 600 -- -- 600
--------- ----------- ----------- -----------
Earnings from operations.............................. 302 460 (261) 501
Other income, principally interest.................... 209 25 -- 234
Interest and debt expense............................. (151) (142) -- (293)
--------- ----------- ----------- -----------
Earnings before taxes on income....................... 360 343 (261) 442
Federal taxes on income............................... (33) 126 (28)(4) 5
(60)(5)
--------- ----------- ----------- -----------
Net earnings.......................................... $ 393 $ 217 $ (173) $ 437
--------- ----------- ----------- -----------
--------- ----------- ----------- -----------
Earnings per share (primary).......................... $ 1.15 -- -- $ 1.24
Earnings per share (fully diluted).................... $ 1.15 -- -- $ 1.24
Weighted average number of shares..................... 342.2 -- -- 351.8
</TABLE>
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30, 1996
------------------------------------------------
<S> <C> <C> <C> <C>
A&D PRO FORMA PRO FORMA
BOEING BUSINESS ADJUSTMENTS COMBINED
--------- ----------- ----------- -----------
<CAPTION>
(IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
Sales and other operating revenues.................... $ 10,568 $ 1,477 $ (250)(1) $ 11,795
Costs and expenses.................................... 9,930 1,250 (250)(1) 11,053
41(2)
70(3)
12(4)
--------- ----------- ----------- -----------
Earnings from operations.............................. 638 227 (123) 742
Other income, principally interest.................... 128 8 -- 136
Interest and debt expense............................. (75) (80) -- (155)
--------- ----------- ----------- -----------
Earnings before taxes on income....................... 691 155 (123) 723
Federal taxes on income............................... 104 58 (12)(4) 122
(28)(5)
--------- ----------- ----------- -----------
Net earnings.......................................... $ 587 $ 97 $ (83) $ 601
--------- ----------- ----------- -----------
--------- ----------- ----------- -----------
Earnings per share (primary).......................... $ 1.70 -- -- $ 1.70
Earnings per share (fully diluted).................... $ 1.70 -- -- $ 1.70
Weighted average number of shares..................... 345.3 -- -- 354.9
</TABLE>
13
<PAGE>
- ------------------------
(1) Adjustment to eliminate sales between the A&D Business and Boeing, and to
record corresponding adjustment to cost of sales.
(2) Adjustment to record amortization of goodwill relating to the acquisition of
the A&D Business assuming, based on a preliminary review of the A&D Business
units, a 30-year straight-line amortization method.
(3) Adjustment to reflect the impact of applying the Boeing actuarial
assumptions as of June 30, 1996 to the revised values for projected
obligation and plan assets of the A&D Business pension plans, and the
revised value for the total accumulated benefit obligation relating to A&D
Business retiree health care.
(4) Adjustment to reclassify state income taxes to general and administrative
costs, consistent with Boeing accounting practices.
(5) Adjustment to record tax provision adjustment resulting from adjustment (3)
above.
PLAN OF DISTRIBUTION
The Guarantee is being offered directly by the Company in connection with
the Merger, subject to the occurrence of the Effectiveness Date.
LEGAL OPINIONS
The legality of the Guarantee will be passed upon for the Company by
Theodore J. Collins, Vice President and General Counsel of the Company. Mr.
Collins owns, has options to purchase and has other interests in shares of
common stock of the Company.
EXPERTS
The financial statements incorporated in this Prospectus by reference to the
Company's Annual Report on Form 10-K for the year ended December 31, 1995 have
been audited by Deloitte & Touche LLP, independent auditors, as indicated in
their report, which is also incorporated by reference herein and is incorporated
by reference in reliance upon such report, given upon the authority of such firm
as experts in auditing and accounting.
The financial statements of the A&D Business incorporated in this Prospectus
by reference to the Form S-4 have been audited by Deloitte & Touche LLP,
independent auditors, as indicated in their report, which is also incorporated
by reference herein and is incorporated by reference in reliance upon such
report, given upon the authority of such firm as experts in auditing and
accounting.
With respect to the unaudited interim financial information of Boeing for
the periods ended March 31, 1996 and 1995 and June 30, 1996 and 1995
incorporated by reference in this Prospectus, Deloitte & Touche LLP have applied
limited procedures in accordance with professional standards for a review of
such information. However, as stated in their reports included in The Boeing
Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996
and June 30, 1996, and incorporated by reference herein, they did not audit and
they do not express an opinion on that interim financial information.
Accordingly, the degree of reliance on their reports on such information should
be restricted in light of the limited nature of the review procedures applied.
Deloitte & Touche LLP are not subject to the liability provisions of Section 11
of the Securities Act for their reports on the unaudited interim financial
information because those reports are not "reports" or a "part" of the
registration statement prepared or certified by an accountant within the meaning
of Sections 7 and 11 of the Securities Act.
14
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER
CONTAINED IN THE PROSPECTUS AND IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATES AS OF WHICH INFORMATION IS GIVEN IN THIS
PROSPECTUS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY
ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN
WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR
TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
---------
<S> <C>
Available Information........................... 2
Documents Incorporated by Reference............. 2
The Company..................................... 3
Ratio of Earnings to Fixed Charges.............. 3
Use of Proceeds................................. 3
Description of the Guarantee.................... 4
Description of the Solicitations................ 9
Description of the Proposed Transactions........ 10
Pro Forma Financial Statements.................. 10
Plan of Distribution............................ 14
Legal Opinions.................................. 14
Experts......................................... 14
</TABLE>
$1,600,000,000
THE BOEING COMPANY
GUARANTEE
---------------------
PROSPECTUS
---------------------
NOVEMBER 5, 1996
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and distribution of
the securities being registered, other than underwriting compensation, are:
<TABLE>
<S> <C>
S.E.C. Registration Fee........................................... $ 551,724
Legal Fees and Expenses........................................... 100,000*
Accounting Fees and Expenses...................................... 8,000*
Miscellaneous..................................................... 100,000*
---------
$ 759,724*
---------
---------
</TABLE>
- ------------------------
* Estimate
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law reads as follows:
INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS; INSURANCE.--
(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of
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<PAGE>
this section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director
in defending any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the corporation as
authorized in this section. Such expenses (including attorneys' fees) incurred
by other employees and agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has
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<PAGE>
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any by-law, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees).
Article VII, Section 4 of the registrant's By-Laws provides as follows:
Section 4. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
4.1 RIGHT TO INDEMNIFICATION. Each person who was or is made a party
or is threatened to be made a party to or is otherwise involved (including,
without limitation, as a witness) in any actual or threatened action, suit,
or proceeding, whether civil, criminal, administrative, or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or was
a director or officer of the Corporation or that, being or having been such
a director or officer or an employee of the Corporation, he or she is or was
serving at the request of an executive officer of the Corporation as a
director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service
with respect to an employee benefit plan (hereinafter an "indemnitee"),
whether the basis of such proceeding is alleged action in an official
capacity as such a director, officer, employee, or agent or in any other
capacity while serving as such a director, officer, employee, or agent,
shall be indemnified and held harmless by the Corporation to the full extent
permitted by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than permitted prior thereto), or by other applicable
law as then in effect, against all expense, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and
amounts paid in settlement) actually and reasonably incurred or suffered by
such indemnitee in connection therewith and such indemnification shall
continue as to an indemnitee who has ceased to be a director, officer,
employee, or agent and shall inure to the benefit of the indemnitee's heirs,
executors, and administrators; PROVIDED, HOWEVER, that except as provided in
Section 4.2 with respect to proceedings seeking to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized or ratified by the
Board of Directors of the Corporation. The right to indemnification
conferred in this Section 4.1 shall be a contract right and shall include
the right to be paid by the Corporation the expenses incurred in defending
any such proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); PROVIDED, HOWEVER, that an advancement of
expenses incurred by an indemnitee in his/her capacity as a director or
officer (and not in any other capacity in which service was or is rendered
by such indemnitee, including, without limitation, service to an employee
benefit plan) shall be made only upon delivery to the Corporation of an
undertaking (hereinafter an "undertaking"), by or on behalf of such
indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right
to appeal that such indemnitee is not entitled to be indemnified for such
expenses under this Section 4.1 or otherwise; and PROVIDED, FURTHER, that an
advancement of expenses shall not be made if the Corporation's Board of
Directors makes a good faith determination that such payment would violate
law or public policy.
4.2 RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section 4.1 is
not paid in full by the Corporation within sixty days after a written claim
has been received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be twenty
days, the indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in
whole or in part in any such suit, or in a suit brought by the Corporation
to recover an advancement of expenses pursuant to the terms of an
undertaking, the
II-3
<PAGE>
indemnitee shall also be entitled to be paid the expense of prosecuting or
defending such suit. The indemnitee shall be presumed to be entitled to
indemnification under this Section 4 upon submission of a written claim
(and, in an action brought to enforce a claim for an advancement of
expenses, where the required undertaking has been tendered to the
Corporation), and thereafter the Corporation shall have the burden of proof
to overcome the presumption that the indemnitee is not so entitled. Neither
the failure of the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the
indemnitee is proper in the circumstances, nor an actual determination by
the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) that the indemnitee is not entitled to
indemnification shall be a defense to the suit or create a presumption that
the indemnitee is not so entitled.
4.3 NONEXCLUSIVITY OF RIGHTS. The rights to indemnification and to the
advancement of expenses conferred in this Section 4 shall not be exclusive
of any other right which any person may have or hereafter acquire under any
statute, provisions of the Certificate of Incorporation, By-Laws, agreement,
vote of stockholders or disinterested directors, or otherwise.
Notwithstanding any amendment to or repeal of this Section 4, or of any of
the procedures established by the Board of Directors pursuant to Section
4.7, any indemnitee shall be entitled to indemnification in accordance with
the provisions hereof and thereof with respect to any acts or omissions of
such indemnitee occurring prior to such amendment or repeal.
4.4 INSURANCE, CONTRACTS, AND FUNDING. The Corporation may maintain
insurance, at its expense, to protect itself and any director, officer,
employee, or agent of the Corporation or another corporation, partnership,
joint venture, trust, or other enterprise against any expense, liability, or
loss, whether or not the Corporation would have the power to indemnify such
person against such expense, liability, or loss under the Delaware General
Corporation Law. The Corporation may, without further stockholder approval,
enter into contracts with any indemnitee in furtherance of the provisions of
this Section 4 and may create a trust fund, grant a security interest, or
use other means (including, without limitation, a letter of credit) to
ensure the payment of such amounts as may be necessary to effect
indemnification as provided in this Section 4.
4.5 PERSONS SERVING OTHER ENTITIES. Any person who is or was a
director, officer, or employee of the Corporation who is or was serving (i)
as a director or officer of another corporation of which a majority of the
shares entitled to vote in the election of its directors is held by the
Corporation or (ii) in an executive or management capacity in a partnership,
joint venture, trust, or other enterprise of which the Corporation or a
wholly owned subsidiary of the Corporation is a general partner or has a
majority ownership shall be deemed to be so serving at the request of an
executive officer of the Corporation and entitled to indemnification and
advancement of expenses under Section 4.1.
4.6 INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION. The
Corporation may, by action of its Board of Directors, authorize one or more
executive officers to grant rights to advancement of expenses to employees
or agents of the Corporation on such terms and conditions as such officer or
officers deem appropriate under the circumstances. The Corporation may, by
action of its Board of Directors, grant rights to indemnification and
advancement of expenses to employees or agents or groups of employees or
agents of the Corporation with the same scope and effect as the provisions
of this Section 4 with respect to the indemnification and advancement of
expenses of directors and officers of the Corporation; PROVIDED, HOWEVER,
that an undertaking shall be made by an employee or agent only if required
by the Board of Directors.
4.7 PROCEDURES FOR THE SUBMISSION OF CLAIMS. The Board of Directors
may establish reasonable procedures for the submission of claims for
indemnification pursuant to this Section 4, determination of the entitlement
of any person thereto, and review of any such determination. Such procedures
shall be set forth in an appendix to these By-Laws and shall be deemed for
all purposes to be a part hereof.
II-4
<PAGE>
Officers and directors of the registrant are covered by insurance which
(with certain exceptions and within certain limitations) indemnifies them
against losses and liabilities arising from any breach of duty, neglect, error,
misstatement, misleading statement, act or omission by the directors or officers
in their respective capacities as such.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
2. Agreement and Plan of Merger dated as of July 31, 1996 filed as Exhibit 2.1 to the
Registration Statement on Form S-4 of The Boeing Company (file number 333-15001) is
hereby incorporated by reference.
4. Form of Supplemental Indenture including Guarantee.
5.1 Opinion of T. J. Collins, Esq., re legality.**
12. Statement re computation of ratios.**
15. Letter of Deloitte & Touche LLP re unaudited interim financial information.
23.1 Consent of Deloitte & Touche LLP with respect to Boeing.
23.2 Consent of T. J. Collins (included in Exhibit 5.1).**
23.3 Consent of Deloitte & Touche LLP with respect to the A&D Business.
24. Power of Attorney**
24.1 Power of Attorney for Mr. Pigott and Mr. Hiller.**
</TABLE>
- ------------------------
* To be filed by amendment.
** Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933, unless the information required to be included in
such post-effective amendment is contained in a periodic report filed by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 and incorporated by reference in this registration
statement;
(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, unless such information required to be included in
such post-effective amendment is contained in a periodic report filed by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 and incorporated herein by reference;
(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.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
II-5
<PAGE>
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to section 13(a)
or section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions described under Item 15 above,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Seattle, State of Washington, on the 5th day of
November, 1996.
THE BOEING COMPANY
By /s/ PHILIP M. CONDIT
------------------------------------
Philip M. Condit
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on the 5th day of November, 1996 by the
following persons in the capacities indicated.
SIGNATURE TITLE
- ------------------------------ ---------------------------
PRINCIPAL EXECUTIVE OFFICER:
/s/ PHILIP M. CONDIT President, Chief Executive
- ------------------------------ Officer and Director
Philip M. Condit
PRINCIPAL FINANCIAL OFFICER:
/s/ BOYD E. GIVAN Senior Vice President and
- ------------------------------ Chief Financial Officer
Boyd E. Givan
PRINCIPAL ACCOUNTING OFFICER:
/s/ GARY W. BEIL Vice President and
- ------------------------------ Controller
Gary W. Beil
DIRECTORS:
/s/ FRANK SHRONTZ Chairman of the Board and
- ------------------------------ Director
Frank Shrontz
* Director
- ------------------------------
John E. Bryson
* Director
- ------------------------------
John B. Fery
* Director
- ------------------------------
Paul E. Gray
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<PAGE>
<TABLE>
<CAPTION>
<S> <C>
SIGNATURE TITLE
- ------------------------------ ---------------------------
* Director
- ------------------------------
Harold J. Haynes
* Director
- ------------------------------
Stanley Hiller, Jr.
* Director
- ------------------------------
Donald E. Petersen
* Director
- ------------------------------
Charles M. Pigott
* Director
- ------------------------------
Rozanne L. Ridgway
* Director
- ------------------------------
George H. Weyerhaeuser
* The undersigned by signing his name hereto does hereby execute this
Registration Statement pursuant to powers of attorney filed as exhibits to
this Registration Statement.
By /s/ DOUGLAS P. BEIGHLE
------------------------------------
Attorney-in-Fact
</TABLE>
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<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
- ----------- -------------------------------------------------------------------------------------------- -----------------
<S> <C> <C>
2. Agreement and Plan of Merger dated as of July 31, 1996 filed as Exhibit 2.1 to the
Registration Statement on Form S-4 of The Boeing Company (file number 333-15001) is hereby
incorporated by reference...................................................................
4. Form of Supplemental Indenture including Guarantee..........................................
5.1 Opinion of T. J. Collins, Esq., re legality.**..............................................
12. Statement re computation of ratios.**.......................................................
15. Letter of Deloitte & Touche LLP re unaudited interim financial information..................
23.1 Consent of Deloitte & Touche LLP with respect to Boeing.....................................
23.2 Consent of T. J. Collins (included in Exhibit 5.1).**.......................................
23.3 Consent of Deloitte & Touche LLP with respect to the A&D Business...........................
24. Power of Attorney**.........................................................................
24.1 Power of Attorney for Mr. Pigott and Mr. Hiller**...........................................
</TABLE>
- ------------------------
* To be filed by amendment.
** Previously filed.
<PAGE>
Exhibit 4
[FORM OF SECOND SUPPLEMENTAL INDENTURE]
SECOND SUPPLEMENTAL INDENTURE (this
"Second Supplemental Indenture") dated as of
, 1996 among ROCKWELL INTERNATIONAL CORPORATION, a
Delaware corporation (hereinafter called the
"Company"), having its principal executive office at
2201 Seal Beach Boulevard, Seal Beach, California,
90740-8250, THE BOEING COMPANY, a Delaware corporation
(hereinafter called the "Guarantor"), having its
principal executive office at 7755 East Marginal Way
South, Seattle, Washington 98108, and THE CHASE
MANHATTAN BANK, a New York banking corporation
(formerly known as Chemical Bank), as successor by
merger to Manufacturers Hanover Trust Company, as
trustee (hereinafter called the "Trustee"), having its
principal corporate trust office in the Borough of
Manhattan, The City of New York.
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee have entered into an Indenture
dated as of October 1, 1982, as supplemented by a First Supplemental Indenture
dated as of February 27, 1987 (hereinafter collectively called the "Indenture"),
providing for the issuance from time to time of unsecured debentures, notes or
other evidences of indebtedness of the Company (hereinafter called the
"Securities") to be issued in one or more series as provided for in the
Indenture;
WHEREAS, $300,000,000 in aggregate principal amount of 7-5/8% Notes
due February 17, 1998 (the "7-5/8% Notes") have been issued as a series of
Securities pursuant to the Indenture and are outstanding;
WHEREAS, $300,000,000 in aggregate principal amount of 8-7/8% Notes
due September 15, 1999 (the "8-7/8% Notes") have been issued as a series of
Securities pursuant to the Indenture and are outstanding;
<PAGE>
2
WHEREAS, $200,000,000 in aggregate principal amount of 8-3/8% Notes
due February 15, 2001 (the "8-3/8% Notes") have been issued as a series of
Securities pursuant to the Indenture and are outstanding;
WHEREAS, $300,000,000 in aggregate principal amount of 6-3/4% Notes
due September 15, 2002 (the "6-3/4% Notes") have been issued as a series of
Securities pursuant to the Indenture and are outstanding;
WHEREAS, $200,000,000 in aggregate principal amount of 7-7/8% Notes
due February 15, 2005 (the "7-7/8% Notes") have been issued as a series of
Securities pursuant to the Indenture and are outstanding;
WHEREAS, $300,000,000 in aggregate principal amount of 6-5/8% Notes
due June 1, 2005 (the "6-5/8% Notes") have been issued as a series of Securities
pursuant to the Indenture and are outstanding;
WHEREAS, the Company desires to modify the Indenture with respect to
the Securities as provided herein;
WHEREAS, the Guarantor desires to provide for the unconditional and
irrevocable guarantee by the Guarantor of the due and punctual payment of the
principal of, premium, if any, interest on, and all other amounts due under, the
Securities; and
WHEREAS, all things necessary to make this Supplemental Indenture a
valid supplemental indenture to the Indenture in accordance with the terms of
the Indenture have been done and the execution and delivery of this Supplemental
Indenture have been duly authorized in all respects.
NOW, THEREFORE, for consideration, the adequacy and sufficiency of
which is hereby acknowledged by the parties hereto, each party agrees as
follows, for the benefit of the other parties and for the equal and
<PAGE>
3
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE 1
AMENDMENTS
SECTION 1.01. The Guarantor is hereby made a party to the Indenture.
SECTION 1.02. Article I of the Indenture is hereby amended by adding
the following definitions to Section 1-1 in the appropriate alphabetic
position:
"CONSOLIDATED NET TANGIBLE ASSETS" shall mean the aggregate amount at
which the assets of the Guarantor and all Guarantor Subsidiaries are
reflected, in accordance with generally accepted accounting practices,
on the asset side of the consolidated balance sheet, as at the close
of a monthly accounting period (selected by the Guarantor) ending
within 65 days next preceding the date of determination, of the
Guarantor and its Guarantor Subsidiaries (after deducting all related
depreciation, amortization and other valuation reserves), except
capital lease property rights, and except goodwill, trade names,
trademarks, patents, unamortized debt discount and expenses and other
like intangibles, and after deducting from such amount current
liabilities as reflected, in accordance with such practices, on said
balance sheet.
"GUARANTEE" means the guarantee set forth in Section 8-1 hereof. The
Guarantee shall be deemed part of the Guaranteed Securities.
"GUARANTEE EVENT OF DEFAULT" means, with respect to any series of
Securities, (1) default in the performance, or breach, of any covenant
or warranty of the Guarantor in Sections 8-2, 8-3 or 8-4 of this
Indenture, and continuance of such default or breach for a period of
90 days after there has been given, by registered or certified mail,
to the Guarantor by the Trustee or to the Guarantor and the Trustee by
the record holders of at least 25% in principal amount of the
Securities of such series at the time Outstanding a written notice
specifying such default or breach and requiring it to
<PAGE>
4
be remedied and stating that such notice is a "Notice of Guarantee
Default" hereunder; or
(2) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Guarantor in an
involuntary case or proceeding under applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Guarantor a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Guarantor under any applicable Federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Guarantor or of any substantial part of
the property of the Guarantor, or ordering the winding up or
liquidation of the affairs of the Guarantor, and the continuance of
any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 90 consecutive days; or
(3) the commencement by the Guarantor of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by the Guarantor
to the entry of a decree or order for relief in an involuntary case or
proceeding under the Federal or state bankruptcy laws or to the
commencement of any bankruptcy or insolvency case or proceeding
against the Guarantor, or the filing by the Guarantor of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or state bankruptcy law, or the consent by the
Guarantor to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Guarantor or of any
substantial part of the property of the Guarantor, or the making by
the Guarantor of an assignment for the benefit of creditors, or the
admission by the Guarantor in writing of its inability to pay its
debts generally as they become due.
"GUARANTEED SECURITIES" means, collectively, the $300,000,000 in
principal amount of 7-5/8% Notes, the $300,000,000 in principal amount
of 8-7/8% Notes, the $200,000,000 in principal amount of 8-3/8% Notes,
the $300,000,000 in principal amount of 6-3/4% Notes, the $200,000,000
in principal amount of 7-7/8% Notes and
<PAGE>
5
the $300,000,000 in principal amount of 6-5/8% Notes issued under the
Indenture prior to the date of the Second Supplemental Indenture and
remaining Outstanding as of such date and "Guaranteed Security" means
any of such Securities.
"GUARANTOR" means the corporation named as the "Guarantor" in the
preamble of the Second Supplemental Indenture until a successor
corporation shall have become the Guarantor pursuant to the applicable
provisions of this Indenture, and thereafter, "Guarantor" shall mean
such successor corporation.
"GUARANTOR BOARD OF DIRECTORS" shall mean the board of directors of
the Guarantor or any committee of such board duly authorized to act
with respect hereto.
"GUARANTOR INDENTURE" shall mean the Indenture dated as of August 15,
1991 between the Guarantor and The Chase Manhattan Bank (successor in
interest to The Chase Manhattan Bank (National Association)) as
Trustee, as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental thereto
entered into pursuant to the applicable provisions thereof, and shall
include the terms of any series of Guarantor Securities established as
contemplated by Section 301 thereof; PROVIDED, HOWEVER, that if at any
time more than one Person is acting as Guarantor Indenture Trustee
thereunder, "Guarantor Indenture" shall mean, with respect to any one
or more series of Guarantor Securities for which a Person is the
Guarantor Indenture Trustee, the Guarantor Indenture as originally
executed or as it may from time to time be supplemented or amended by
one or more indentures supplemental thereto entered into pursuant to
the applicable provisions thereof and shall include the terms of the
or those particular series of Guarantor Securities for which such
Person is the Guarantor Indenture Trustee established as contemplated
by Section 301 thereof, exclusive, however, of any provisions or terms
which relate solely to other series of Guarantor Securities for which
such Person is the Guarantor Indenture Trustee, regardless of when
such terms or provisions were adopted, and exclusive of any provisions
or terms adopted by means of one or more indentures supplemental
thereto executed and delivered after such Person had become such
Guarantor Indenture
<PAGE>
6
Trustee but to which such Person, as such Guarantor Indenture Trustee,
was not a party.
"GUARANTOR INDENTURE TRUSTEE" shall mean The Chase Manhattan Bank
(successor in interest to The Chase Manhattan Bank (National
Association)) and, subject to the provisions of Article Six of the
Guarantor Indenture, shall also include its successors and assigns,
and, if at any time there is more than one Person acting as the
Guarantor Indenture Trustee thereunder, "Guarantor Indenture Trustee",
as used with respect to Guarantor Securities of any series, shall mean
the Guarantor Indenture Trustee with respect to the Guarantor
Securities of that series.
"GUARANTOR SECURITIES" shall mean "Securities" as defined in the first
recital of the Guarantor Indenture and shall more particularly mean
any Guarantor Securities authenticated and delivered under the
Guarantor Indenture; PROVIDED, HOWEVER, that if at any time there is
more than one Person acting as the Guarantor Indenture Trustee under
the Guarantor Indenture, "Guarantor Securities," with respect to the
series as to which such Person is the Guarantor Indenture Trustee,
shall mean "Securities" as defined in the first recital of the
Guarantor Indenture and shall more particularly mean the Guarantor
Securities authenticated and delivered under the Guarantor Indenture,
exclusive, however, of Guarantor Securities of any series as to which
such Person is not Guarantor Indenture Trustee.
"GUARANTOR SECURITY REGISTER" and "GUARANTOR SECURITY REGISTRAR" shall
mean "Security Register" and "Security Registrar", respectively, as
defined in Section 305 of the Guarantor Indenture.
"GUARANTOR SUBSIDIARY" shall mean a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by
the Guarantor or by one or more other Guarantor Subsidiaries, or by
the Guarantor and one or more other Guarantor Subsidiaries. For the
purposes of this definition, "voting stock" means stock that
ordinarily has voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
<PAGE>
7
"MATURITY," when used with respect to any Security or Guarantor
Security, shall mean the date on which the principal of such Security
or Guarantor Security or an installment of principal becomes due and
payable as therein, herein or in the Guarantor Indenture provided,
whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of
the Board, Chairman of the Executive Committee, the President or a
Vice President, and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant
Secretary of the Company or the Guarantor, as the case may be, and
delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of legal counsel, who may
(except as otherwise expressly provided in this Indenture) be an
employee of or of counsel for the Company or the Guarantor, as the
case may be, and who shall be reasonably acceptable to the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" shall mean any Guarantor Security
that provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 of the Guarantor Indenture.
"PAYMENT DEFAULT" with respect to any series of Securities shall mean
an Event of Default referred to in Section 5-1(a), (b) or (c) of this
Indenture with respect to such series of Securities.
"PRINCIPAL PROPERTY" shall mean all real property and tangible
personal property constituting a manufacturing plant located within
the United States owned by the Guarantor or a Guarantor Subsidiary,
exclusive of (i) motor vehicles, mobile materials-handling equipment
and other rolling stock, (ii) office furnishings and equipment,
information and electronic data processing equipment, (iii) any
property financed through obligations issued by a state, territory or
possession of the United States, or any political subdivision or
instrumentality of the foregoing, on which the interest is not, in the
opinion of tax counsel of recognized standing or in accordance with a
<PAGE>
8
ruling issued by the Internal Revenue Service, includible in gross
income of the holder by reason of Section 103(a)(1) of the Internal
Revenue Code (or any successor to such provision) as in effect at the
time of the issuance of such obligations, (iv) any real property held
for development or sale, or (v) any property the gross book value of
which (including related land and improvements thereon and all
machinery and equipment included therein without deduction of any
depreciation reserves) is less than 15% of Consolidated Net Tangible
Assets or which the Guarantor Board of Directors determines is not
material to the operation of the business of the Guarantor and its
Guarantor Subsidiaries taken as a whole.
"SALE AND LEASE-BACK TRANSACTION" of a corporation shall mean any
arrangement whereby (i) property has been or is to be sold or
transferred by such corporation to any Person with the intention on
the part of such corporation of taking back a lease of such property
pursuant to which the rental payments are calculated to amortize the
purchase price of such property substantially over the useful life of
such property and (ii) such property is in fact so leased by such
corporation.
"SECOND SUPPLEMENTAL INDENTURE" means the Second Supplemental
Indenture dated as of , 1996 to this Indenture.
"STATED MATURITY," when used with respect to any Security or Guarantor
Security or any installment of principal thereof or interest thereon,
shall mean the date specified in such Security or Guarantor Security
as the fixed date on which the principal of such Security or Guarantor
Security or such installment of principal or interest is due and
payable.
SECTION 1.03. Article I of the Indenture is hereby amended by
deleting the definitions of "Consolidated Funded Debt", "Funded Debt",
"indebtedness", "Maturity", "Officers' Certificate", "Opinion of Counsel",
"Principal Property", "Restricted Subsidiary", "Sale and Lease-Back
Transaction", "Secured Debt", "Stated Maturity", "Stockholders Equity",
"Unrestricted Subsidiary" and "Wholly-owned Restricted Subsidiary" from Section
1-1 thereof.
<PAGE>
9
SECTION 1.04. Article I of the Indenture is hereby amended by
amending and restating Section 1-5 thereof as follows:
Section 1-5. Notices, etc., to Trustee, Company and Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Securityholders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Securityholder or by the Company or by the
Guarantor shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at its
principal corporate trust office,
(2) the Company by the Trustee or by any Securityholder or by the
Guarantor shall be sufficient for every purpose hereunder if in
writing and mailed, first-class, postage prepaid, to the Company
addressed to it at the address of its principal office specified in
the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee and the Guarantor by
the Company, or
(3) the Guarantor by the Trustee or by any Securityholder or by the
Company shall be sufficient for every purpose hereunder if in writing
and mailed, first-class, postage prepaid, to the Guarantor addressed
to it at the address of its principal office specified in the preamble
to the Second Supplemental Indenture or at any other address
previously furnished in writing to the Trustee and the Company by the
Guarantor".
SECTION 1.05. Article I of the Indenture is hereby amended by adding
the words "or the Guarantor" after the words "the Company" in Section 1-9
thereof.
SECTION 1.06. Article III of the Indenture is hereby amended by
amending and restating Section 3-8 thereof in its entirety as follows:
Prior to due presentment for registration of transfer of any Security,
the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee may treat the Person in whose name any
<PAGE>
10
Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any), and
(subject to Section 3.07) interest on, such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Guarantor, the Trustee nor any agent of the
Company, the Guarantor or the Trustee shall be affected by notice to
the contrary.
SECTION 1.07. Article IV of the Indenture is hereby amended by adding
the words "including the Guarantee" after the words "this Indenture" in Section
4-3 thereof the first time such words appear in such section. Article X of the
Indenture is hereby amended by amending and restating the introductory clause to
Section 10-12 thereof as follows:
"If this Section 10-12 has been specified in accordance with
Section 3-1 to be applicable to Securities of any series, the
Guarantor may omit to comply with any term, provision or condition set
forth in Sections 8-2 and 8-3, and Section 5-1(h) with respect to
Sections 8-2 and 8-3 shall be deemed not to be an Event of Default, in
each case with respect to the Securities of that series, when"
SECTION 1.08. Article V of the Indenture is hereby amended by
(i) adding the words "and the Guarantor" after the words "the Company" in
Section 5-2 thereof the first and second time such words appear in such section,
(ii) adding the words "or the Guarantor" after the words "the Company" in
subsection (1) of such section; (iii) replacing the words "The Company
covenants" in Section 5-3 with the words "The Company and the Guarantor
covenant," (iv) adding the words "or the Guarantor" after the words "the
Company" all other times such words appear in such section and (v) amending and
restating Section 5-1 thereof in its entirety as follows:
Section 5-1. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(a) default in the due and punctual payment of any interest upon
any of the Securities of such series as
<PAGE>
11
and when the same shall become due and payable, and continuance of
such default for a period of 30 days; or
(b) default in the due and punctual payment of the principal of
(and premium, if any, on) any Securities of such series as and when
the same shall become due and payable at Maturity or by declaration as
authorized by this Indenture; or
(c) default in making any mandatory or optional sinking fund
payment provided for in Section 11-1 with respect to Securities of
such series as and when the same shall become due and payable, and
continuance of such default for a period of 5 days; or
(d) failure on the part of the Company to duly observe or perform
any other of the covenants or agreements on the part of the Company in
such Securities or in this Indenture contained (other than a covenant
or agreement a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of a
series of Securities other than such series) for a period of 90 days
after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Company by the
Trustee, or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Securities of such series at the time
Outstanding; or
(e) the entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Company in an
involuntary case under the Federal bankruptcy laws, as now constituted
or hereafter amended, or any other applicable Federal or State
bankruptcy, insolvency or other similar law, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or of any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 90 consecutive days; or
(f) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now constituted or hereafter amended, or
any other
<PAGE>
12
applicable Federal or State bankruptcy, insolvency or other similar
law, or the consent by it to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian, sequestrator
(or other similar official) of the Company or of any substantial part
of its property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
(g) any other Event of Default provided with respect to
Securities of such series; or
(h) the occurrence of a Guarantee Event of Default with respect
to Securities of such series.
SECTION 1.09. Article VII of the Indenture is hereby amended by
amending and restating Section 7-4 thereof in its entirety as follows:
Section 7-4. FILINGS BY THE COMPANY.
The Company will
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company is
required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended; or,
if the Company is not required to file information, documents or
reports pursuant to either of such Sections, then the Company will
file with the Trustee and the Commission, in accordance with rules and
regulations prescribed by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and
regulations;
<PAGE>
13
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed by the Commission, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
(c) transmit by mail to all Holders of Securities as their names
and addresses appear in the Security Register, within 30 days after
the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company
pursuant to SUBSECTIONS (A) and (B) of this Section as may be required
by rules and regulations prescribed by the Commission; and
(d) furnish to the Trustee, within 120 days after the end of
each fiscal year, a brief certificate from the principal executive
officer, principal financial officer or principal accounting officer
as to his or her knowledge of the Company's compliance with all
conditions and covenants under this Indenture. For purposes of this
SUBSECTION (D), such compliance shall be determined without regard to
any period of grace or requirement of notice provided under this
Indenture.
SECTION 1.10. Article VII of the Indenture is hereby further amended
by the addition of the following as Section 7-5 thereof.
Section 7-5. FILINGS BY THE GUARANTOR.
The Guarantor will
(a) file with the Trustee, within 15 days after the Guarantor is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Guarantor
is required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended; or,
if the Guarantor is not required to file information, documents or
reports pursuant to either of such Sections, then the Guarantor will
file with the Trustee and the Commission, in accordance with rules and
<PAGE>
14
regulations prescribed by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and
regulations;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed by the Commission, such additional
information, documents and reports with respect to compliance by the
Guarantor with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations;
(c) transmit by mail to all Holders of Securities as their names
and addresses appear in the Security Register, within 30 days after
the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the
Guarantor pursuant to SUBSECTIONS (A) and (B) of this Section as may
be required by rules and regulations prescribed by the Commission; and
(d) furnish to the Trustee, within 120 days after the end of
each fiscal year, a brief certificate from the principal executive
officer, principal financial officer or principal accounting officer
as to his or her knowledge of the Guarantor's compliance with all
conditions and covenants under this Indenture. For purposes of this
SUBSECTION (D), such compliance shall be determined without regard to
any period of grace or requirement of notice provided under this
Indenture.
SECTION 1.11. Article VIII of the Indenture is hereby deleted and
replaced in its entirety with the following:
ARTICLE VIII
GUARANTEE
Section 8-1. GUARANTEE.
The Guarantor hereby unconditionally and irrevocably guarantees to
each Holder of a Guaranteed Security and the Trustee the due and
punctual payment
<PAGE>
15
of the principal of, premium, if any, interest on, and all other
amounts due under, the Guaranteed Securities, when and as the same
shall become due and payable, whether at Maturity, pursuant to
mandatory or optional prepayments, by acceleration or otherwise, in
each case after any applicable grace periods or notice requirements or
both, according to the terms of the Guaranteed Securities and this
Indenture. The Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of any such Guaranteed Security or this Indenture, any
change or amendment thereto, the absence of any action to enforce the
same, any waiver or consent by the Trustee or the Holder of such
Guaranteed Security with respect to any provision of such Guaranteed
Security or this Indenture, the recovery of any judgment against the
Company or any action to enforce the same, or any other circumstances
that may otherwise constitute a legal or equitable discharge or
defense of a guarantor; PROVIDED, HOWEVER, that nothing contained
herein shall constitute or be deemed to constitute a waiver by the
Guarantor of presentment or demand of payment or notice to the
Guarantor with respect to such Guaranteed Security and the obligations
evidenced thereby or hereby. The Guarantor further waives any right
of set-off or counterclaim it may have against any Holder of any
Guaranteed Security arising from any other obligations any such Holder
may have to the Company or the Guarantor. The Guarantor covenants
that this Guarantee will not be discharged except by complete
performance of the obligations contained in the Guaranteed Securities,
this Indenture and the Guarantee.
The Guarantor shall be subrogated to all rights against the Company
of any Holder in respect of any amounts paid by the Guarantor pursuant
to the provisions of the Guarantee; PROVIDED, HOWEVER, that the
Guarantor shall be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation only after the
principal of and interest on all Guaranteed Securities and all other
amounts owed to the Holders hereunder have been paid in full.
This Guarantee shall continue to be effective or reinstated, as the
case may be, if at any time any payment of the principal of or
interest on any of the
<PAGE>
16
Guaranteed Securities or any other amounts owed to the Holders
hereunder is rescinded or must otherwise be returned by such Holders
upon the insolvency, bankruptcy or reorganization of the Company or
the Guarantor or otherwise, all as though such payment had not been
made.
Section 8-2. LIMITATIONS ON LIENS.
(a) The Guarantor will not, and will not permit any Guarantor
Subsidiary to, issue, assume or guarantee any notes, bonds, debentures
or other similar evidences of indebtedness for money borrowed (herein
referred to for purposes of this Section 8-2 and Section 8-3 as
"indebtedness") secured by any mortgage, security interest, pledge or
lien (herein referred to for purposes of this Section 8-2 and Section
8-3 as a "mortgage") of or upon any Principal Property, or shares of
capital stock or evidences of indebtedness for borrowed money issued
by any Guarantor Subsidiary and owned by the Guarantor or any
Guarantor Subsidiary whether owned at the date of the effectiveness
of the Second Supplemental Indenture or thereafter acquired, without
making effective provision, and the Guarantor in each case will
make or cause to be made effective provision, whereby the Guarantor's
obligations under the Guarantee shall be secured by such mortgage
equally and ratably with any and all other indebtedness thereby
secured, so long as such indebtedness shall be so secured (for the
purpose of providing such equal and ratable security the principal
amount of the Guarantor's obligations under the Guarantee shall mean
and shall not be less than that principal amount of the Securities
that could be declared to be due and payable pursuant to Section 5-2
on the date of the making of such effective provision and the extent
of such equal and ratable security shall be adjusted as and when said
principal amount changes over time pursuant to Section 5-2 and any
other provision of this Indenture or the Securities); PROVIDED,
HOWEVER, that the foregoing restriction shall not apply to
indebtedness secured by any of the following:
(1) mortgages on any property existing at the time of
acquisition thereof or at the date of the effectiveness of the Second
Supplemental Indenture;
(2) mortgages on property of a corporation existing at the time
such corporation is merged into or consolidated with the Guarantor or
a Guarantor
<PAGE>
17
Subsidiary or a Guarantor Subsidiary is merged into such corporation
or at the time of a sale, lease or other disposition of the properties
of such corporation (or a division thereof) as an entirety or
substantially as an entirety to the Guarantor or a Guarantor
Subsidiary, PROVIDED that such mortgage as a result of such merger,
consolidation, sale, lease or other disposition is not extended to
property owned by the Guarantor or such Guarantor Subsidiary
immediately prior thereto;
(3) mortgages on property of a corporation existing at the time
such corporation first becomes a Guarantor Subsidiary;
(4) mortgages securing indebtedness of a Guarantor Subsidiary to
the Guarantor or to another Guarantor Subsidiary;
(5) mortgages on property to secure all or part of the cost of
acquiring, substantially repairing or altering, constructing,
developing or substantially improving all or any part of such
property, or to secure indebtedness incurred to provide funds for any
such purpose or for reimbursement of funds previously expended for any
such purpose, PROVIDED the commitment of the creditor to extend the
credit secured by any such mortgage shall have been obtained not later
than 120 days after the later of (a) the completion of the
acquisition, substantial repair or alteration, construction,
development or substantial improvement of such property or (b) the
placing in operation of such property or of such property as so
substantially repaired or altered, constructed, developed or
substantially improved;
(6) mechanic's liens, tax liens, liens in favor of any
governmental body to secure progress, advance or other payments or the
acquisition of real or personal property from such governmental body
pursuant to any contract or provision of any statute, and other liens,
charges and encumbrances incidental to construction, to the conduct of
business or the ownership of property of the Guarantor or any
Guarantor Subsidiary which were not incurred in connection with the
borrowing of money or the obtaining of advances or credits or the
acquisition of property and do not in the aggregate materially impair
the use of any Principal Property for
<PAGE>
18
the purposes for which it is held or which are being contested in good
faith by the Guarantor or such Guarantor Subsidiary; or
(7) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
mortgage referred to in the foregoing clauses (1) to (6), inclusive,
PROVIDED, HOWEVER, that the principal amount of indebtedness secured
thereby and not otherwise authorized by said clauses (1) to (6),
inclusive, shall not exceed the principal amount of indebtedness,
plus any premium or fee payable in connection with any such
extension, renewal or replacement, so secured at the time of such
extension, renewal or replacement.
(b) Notwithstanding the provisions of Section 8-2(a), the
Guarantor or any Guarantor Subsidiary may issue, assume or guarantee
indebtedness secured by mortgages which would otherwise be subject to
the restrictions of Section 8-2(a) in an aggregate amount which,
together with all attributable debt outstanding pursuant to Section
8-3(b) and all indebtedness outstanding pursuant to this Section
8-2(b) does not at the time of such issuance, assumption or guarantee
of secured indebtedness exceed 15% of Consolidated Net Tangible
Assets.
Section 8-3. LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS.
(a) the Guarantor will not, nor will it permit any Guarantor
Subsidiary to, enter into any Sale and Lease-Back Transaction with
respect to any Principal Property (except for a transaction providing
for a lease for a term, including any renewal thereof, of not more
than three years, except for a transaction between the Guarantor and a
Guarantor Subsidiary or between Guarantor Subsidiaries and except for
any lease of property acquired after the date of the effectiveness
of the Second Supplemental Indenture if the rent payable by the
Guarantor or such Guarantor Subsidiary thereunder is to be
reimbursed under a contract with the government of the United States
or any instrumentality or agency thereof), if the commitment by or
on behalf of the purchaser is obtained more than 120 days after the
later of (i) the completion of the acquisition, substantial repair
or alteration, construction, development or substantial improvement
of such
<PAGE>
19
Principal Property or (ii) the placing in operation of such Principal
Property or of such Principal Property as so substantially repaired or
altered, constructed, developed or substantially improved, unless
either (x) the Guarantor or such Guarantor Subsidiary would be
entitled pursuant to Section 8-2(a) to issue, assume or guarantee
debt secured by a mortgage on such Principal Property without equally
and ratably securing the Guarantor's obligations under the Guarantee
or (y) the Guarantor shall apply or cause to be applied, in the case
of a sale or transfer for cash, an amount equal to the net proceeds
thereof (but not in excess of the net book value of such Principal
Property at the date of such sale or transfer) and, in the case of a
sale or transfer otherwise than for cash, an amount equal to the fair
value (as determined by the Guarantor Board of Directors) of the
Principal Property so leased to the retirement, within 180 days after
the effective date of such Sale and Lease-Back Transaction, of
Securities, Guarantor Securities or other indebtedness of the
Guarantor or a Guarantor Subsidiary; PROVIDED, HOWEVER, that the
amount to be applied to any such retirement of Securities or the
Guarantor Securities shall be reduced by an amount equal to the sum of
(A) an amount equal to the principal amount of Securities or Guarantor
Securities delivered within 180 days after the effective date of such
Sale and Lease-Back Transaction to the Trustee or the Guarantor
Indenture Trustee, as the case may be, for retirement and cancellation
(for purposes of making such calculation the principal amount of
Original Issue Discount Securities so retired or cancelled shall mean
the portion thereof that could have been declared due and payable
pursuant to Section 502 of the Guarantor Indenture at the time retired
and cancelled) and (B) the principal amount, plus any premium or fee
paid in connection with any redemption in accordance with the terms,
of other indebtedness voluntarily retired by the Guarantor within such
180-day period, excluding retirements pursuant to prepayment
provisions and payments at Maturity.
(b) Notwithstanding the provisions of Section 8-3(a), the
Guarantor or any Guarantor Subsidiary may enter into a Sale and
Lease-Back Transaction which would otherwise be subject to the
restrictions of Section 8-3(a) so as to create an aggregate amount of
attributable debt which, together with all indebtedness outstanding
pursuant to Section 8-2(b), and all attributable debt outstanding
<PAGE>
20
pursuant to this Section 8-3(b), does not at the time of such Sale
and Lease-Back Transaction exceed 15% of Consolidated Net Tangible
Assets. "Attributable debt" in respect of any Sale and Lease-Back
Transaction means, as of the time of the determination, the lesser of
(i) the sale price of the Principal Property so leased multiplied by
a fraction the numerator of which is the remaining portion of the base
term of the lease included in such transaction and the denominator of
which is the base term of such lease and (ii) the total obligation
(discounted to present value at the implicit interest factor,
determined in accordance with generally accepted financial practice,
included in the rental payments or, if such interest factor cannot be
readily determined, at a rate of interest of 10% per annum, compounded
semiannually) of the lessee for rental payments (other than amounts
required to be paid on account of property taxes as well as
maintenance, repairs, insurance, water rates and other items which
do not constitute payments for property rights) during the remaining
portion of the base term of the lease included in such transaction.
Section 8-4. CONSOLIDATIONS AND MERGERS OF THE GUARANTOR AND
CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS.
(a) The Guarantor may consolidate with, or sell or convey all or
substantially all its assets to, or merge into any other corporation;
PROVIDED, HOWEVER, that in any such case, (i) the Guarantor is the
surviving corporation, or the successor corporation shall be a
corporation organized and existing under the laws of the United States
of America or a State thereof and such corporation shall expressly
assume the due and punctual performance and observance of all the
covenants and conditions of the Guarantor under the Guarantee and of
the other covenants and conditions of this Indenture to be performed
or observed by the Guarantor by a supplemental indenture, executed and
delivered to the Trustee by such corporation and (ii) immediately
after such merger or consolidation or such sale or conveyance, no
Payment Default or Guarantee Event of Default, and no event that,
after notice or lapse of time or both, would become a Payment Default
or Guarantee Event of Default shall have occurred and be continuing.
<PAGE>
21
(b) In case of any such consolidation, merger, sale or
conveyance and upon any such assumption by the successor corporation,
such successor corporation shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as the
Guarantor, and the predecessor corporation shall be relieved of any
further obligation hereunder.
(c) The Trustee shall receive an Officers' Certificate and an
Opinion of Counsel each stating that any such consolidation, merger,
sale or conveyance, and any such assumption, and all conditions
precedent herein provided for relating to such transaction have been
complied with.
Section 8-5. NOTATION OF GUARANTEE.
The Guarantee may, but need not be, noted on the reverse of any
Guaranteed Security authenticated and delivered by the Trustee after
the date of the Second Supplemental Indenture.
The Guarantor hereby agrees that the Guarantee set forth in Section
8-1 hereof shall remain in full force and effect and shall apply to
each Guaranteed Security executed, authenticated, issued and delivered
under this Indenture, whether or not a notation of the Guarantee is
endorsed on such Guaranteed Security. The execution and delivery by
the Company and the Guarantor of the Second Supplemental Indenture to
the Trustee shall constitute delivery of the Guarantee set forth
herein on behalf of the Guarantor with respect to all Outstanding
Guaranteed Securities.
Section 8-6. DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS OF THE
GUARANTOR EXEMPT FROM PERSONAL LIABILITY.
No director, officer, employee or stockholder as such, of the
Guarantor shall have any liability for any obligations of the
Guarantor with respect to the Guaranteed Securities or the Indenture
or for any claim based on, in respect of or by reason of such
obligations or their creation; and any and all such personal liability
is expressly waived and released as a condition of, and as
consideration for, the execution of the Second Supplemental Indenture
by the Guarantor and the issuance of the Guarantee.
<PAGE>
22
SECTION 1.12. Article IX of the Indenture is hereby amended by adding
the words "the Guarantor" after the words "Board Resolution," in the
introductory clause to Section 9-1 thereof and by adding the words "(including
the Guarantee)" after the words "this Indenture" in clause (3) of Section 9-1
thereof and by renumbering clause (9) of Section 9-1 thereof as clause (10) and
adding the following as clause (9):
"(9) to evidence the succession of another corporation to the
Guarantor, and the assumption by any such successor of the covenants
of the Guarantor herein and in the Securities contained; or"
Article IX of the Indenture is hereby further amended by adding the
words "the Guarantor" after the words "Board Resolution," in the introductory
clause to Section 9-2.
SECTION 1.13. Article X of the Indenture shall be amended by deleting
Section 10-4, Section 10-5, Section 10-6, Section 10-8, Section 10-9,
Section 10-10 and Section 10-11 in their entirety.
ARTICLE 2
MISCELLANEOUS
SECTION 2.01. Notwithstanding anything contained in this Second
Supplemental Indenture to the contrary, none of the provisions contained in
Article 1 hereof will become effective or be of any force or effect until the
Effectiveness Date (as defined in Section 2.03 below) has occurred.
SECTION 2.02. The Trustee will deliver a copy of the Guarantee to
each record holder of Securities as of the Effectiveness Date, as soon as
practicable after the Effectiveness Date.
SECTION 2.03. For purposes of this Second Supplemental Indenture, the
"Effectiveness Date" means the date on which the later of the following events
occurs: (i) this Second Supplemental Indenture has been duly executed and
delivered by the parties hereto and (ii) the Effective Time, as defined in the
Agreement and Plan of Merger dated as of July 31, 1996 among the Company, Boeing
and Boeing NA, Inc., shall have occurred or shall be simultaneously occurring.
<PAGE>
23
SECTION 2.04. This Second Supplemental Indenture is executed and
shall be construed as an indenture supplemental to the Indenture with respect to
the Securities and, as provided in the Indenture, this Second Supplemental
Indenture forms a part thereof with respect to the Securities. Except as herein
modified, the Indenture is in all respects ratified and confirmed with respect
to the Securities and all the terms, provisions and conditions thereof shall be
and remain in full force and effect with respect to the Securities and every
Holder of Securities shall be bound hereby. Except as herein expressly
otherwise defined, the use of the terms and expressions herein is in accordance
with the definitions, uses and constructions contained in the Indenture.
SECTION 2.05. If any provision of this Second Supplemental Indenture
limits, qualifies or conflicts with any other provision hereof or of the
Indenture which provision is required to be included in the Indenture by any of
the provisions of the TIA, such required provision shall control.
SECTION 2.06. All covenants and agreements in this Second
Supplemental Indenture by the Company or the Guarantor shall bind their
respective successors and assigns, whether so expressed or not.
SECTION 2.07. If any provision of this Second Supplemental Indenture
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 2.08. This Second Supplemental Indenture shall be construed
in accordance with and governed by the laws of the State of New York.
SECTION 2.09. This Second Supplemental Indenture may be executed in
any number of counterparts, each of which shall be an original but such
counterparts shall together constitute but one and the same instrument.
SECTION 2.10. Nothing in this Second Supplemental Indenture, express
or implied, shall give to any Person, other than the parties hereto and their
successors hereunder
<PAGE>
24
and the Holders of Securities, any benefit or any legal or equitable right,
remedy or claim under this Supplemental Indenture.
SECTION 2.11. The recitals contained herein shall be taken as the
statements of the Company and the Guarantor and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representation as to
the validity or sufficiency of this Second Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
[Seal] ROCKWELL INTERNATIONAL
CORPORATION,
Attest:
by
- --------------------- -------------------------
Assistant Secretary Name:
Title:
[Seal] THE BOEING COMPANY,
Attest: by
- --------------------- -------------------------
Assistant Secretary Name:
Title:
<PAGE>
25
[Seal]
THE CHASE MANHATTAN BANK,
as Trustee,
Attest:
by
- --------------------- -------------------------
Assistant Secretary Name:
Title:
<PAGE>
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK, )
On this the day of , 1996, before me personally appeared
, to me known, who being by me duly sworn, did depose and say
that he resides at ; that he is
the of ROCKWELL INTERNATIONAL CORPORATION, one of the parties
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
Sworn to before me this
the day of ,
1996.
- ---------------------------
Notary Public
<PAGE>
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK, )
On this the day of , 1996, before me personally appeared
, to me known, who being by me duly sworn, did depose and say
that he resides at ; that he is
an of THE CHASE MANHATTAN BANK, one of the parties described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
Sworn to before me this
the day of ,
1996.
- --------------------------------
Notary Public
<PAGE>
STATE OF WASHINGTON, )
) ss.:
COUNTY OF KING, )
On this the day of , 1996, before me personally appeared
, to me known, who being by me duly sworn, did depose and say
that he resides at ; that he is
an of THE BOEING COMPANY, one of the parties described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
Sworn to before me this
the day of ,
1996.
- ---------------------------
Notary Public
<PAGE>
Exhibit 15
November 4, 1996
The Boeing Company
Seattle, Washington
We have made a review, in accordance with standards established by the American
Institute of Certified Public Accountants, of the unaudited interim financial
information of The Boeing Company and subsidiaries for the periods ended
March 31, 1996 and 1995 and June 30, 1996 and 1995 as indicated in our reports
dated April 29, 1996 and August 1, 1996, respectively. Because we did not
perform an audit, we express no opinion on that information.
We are aware that our reports referred to above, which were included in your
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996 and
June 30, 1996, are being incorporated by reference in Amendment No. 2 to
Registration Statement No. 333-11777 on Form S-3.
We are also aware that the aforementioned reports, pursuant to Rule 436(c) under
the Securities Act of 1933, are not considered a part of the Registration
Statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that Act.
/s/ DELOITTE & TOUCHE LLP
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
Board of Directors
The Boeing Company
We consent to the incorporation by reference in this Amendment No. 2 to
Registration Statement No. 333-11777 of The Boeing Company on Form S-3 of our
reports dated January 25, 1996 appearing and incorporated by reference in the
Annual Report on Form 10-K of The Boeing Company for the year ended December 31,
1995, and to the reference to us under the heading "Experts" in the Prospectus,
which is part of such Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Deloitte & Touche LLP
Seattle, Washington
November 4, 1996
<PAGE>
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 2 to
Registration Statement No. 333-11777 of The Boeing Company on Form S-3 of our
report dated July 31, 1996 relating to the financial statements of the Aerospace
and Defense business of Rockwell International Corporation appearing in the
Registration Statement on Form S-4 of The Boeing Company and to the reference to
us under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Pittsburgh, Pennsylvania
November 5, 1996
