As filed with the Securities and Exchange Commission on October 30, 1996
Registration No. 333-11777
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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The Boeing Company
(Exact name of registrant as specified in its charter)
Delaware 91-0425694
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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
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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.
=============================================================================
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such State.
SUBJECT TO COMPLETION
dated October 29, 1996
$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 , 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 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.
<PAGE>
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 1991
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges ..... 7.2 2.5 5.6 8.6 12.9 20.8
Ratio of Earnings to Fixed
Charges Based on Pro Forma
Condensed Combined Statement of
Net Earnings ...................... 4.7 2.1
</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.
<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"), and a
final Prospectus from the Company. 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 waiver. Any determination by Boeing
concerning the events described in this paragraph shall be final and
binding upon all persons.
<PAGE>
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 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 ss. 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 ss. 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 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 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 the 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.
<PAGE>
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
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 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
<PAGE>
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.
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, 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
<PAGE>
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 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
Sections 5-1(a), (b) or (c) of the Indenture.
"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.
<PAGE>
"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, upon the
terms and subject to the conditions set forth in the
Statement and the accompanying Consent Letter (the
"Consent"), 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 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 and
other documents relating to the Solicitations that have been delivered by
Boeing to
<PAGE>
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
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.
<PAGE>
June 30, 1996
-------------------------------------
A&D Pro Forma Pro Forma
Boeing Business Adjustments Combined
------ -------- ----------- ---------
(In millions)
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
======= ======= ======= =======
- --------------
(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 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.
<PAGE>
(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 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.
<PAGE>
<TABLE>
<CAPTION>
Year ended December 31, 1995
-----------------------------------------------
A&D Pro Forma Pro Forma
Boeing Business Adjustments Combined
------ -------- ------------ ---------
(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
---------------------------------------------------
A&D Pro Forma Pro Forma
Boeing Business Adjustments Combined
------ -------- ----------- ---------
(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>
- --------------
(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.
<PAGE>
(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.
<PAGE>
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.
<PAGE>
============================================== =======================
No dealer, salesman or any other person has $1,600,000,000
been authorized to give any information or to
make any representations other than those con-
tained in or incorporated by reference in this
Prospectus in connection $1,600,000,000 with
the offer contained in the Prospectus and if
given or made, such information or representa- THE BOEING COMPANY
tion must not be relied upon as having been
authorized by the Company. Neither the delivery
of the Prospectus nor any sale made hereunder
shall, under any circumstances, create any
implication that there has been no change in Guarantee
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 solici-
tation of an offer to buy any securities other
than the securities to which it relates.
----------------------
TABLE OF CONTENTS
----------------------
Page
---- PROSPECTUS
Available Information.................. 2 ----------------------
Documents Incorporated by Reference.... 2
The Company............................ 3
Ratio of Earnings to Fixed Charges..... 3 , 1996
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................... 15
Legal Opinions......................... 15
Experts................................ 15
============================================ =======================
<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:
S.E.C. Registration Fee...................................... $551,724
Legal Fees and Expenses...................................... 100,000*
--------
Accounting Fees and Expenses................................. 8,000*
--------
Miscellaneous................................................ 100,000*
--------
$759,724*
=========
- -------
* 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 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.
<PAGE>
(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 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,
<PAGE>
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
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
<PAGE>
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.
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.
<PAGE>
Item 16.Exhibits.
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.
- --------------
* 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.
(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.
<PAGE>
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.
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 29th day of October, 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 29th day of
October, 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)
<PAGE>
*
- ----------------------------- Director
(John E. Bryson)
*
- ----------------------------- Director
(John B. Fery)
*
- ----------------------------- Director
(Paul E. Gray)
*
- ----------------------------- 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
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Exhibit Page
- ------- ------- ------------
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.
- --------
* To be filed by amendment.
** Previously filed.
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;
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;
<PAGE>
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>
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
<PAGE>
requiring it to 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>
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>
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>
"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
Sections 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 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
<PAGE>
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.
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".
<PAGE>
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 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 Sections
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,"
<PAGE>
(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 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
<PAGE>
(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 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
<PAGE>
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;
(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.
<PAGE>
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 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
<PAGE>
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 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
<PAGE>
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 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 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
<PAGE>
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 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 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
<PAGE>
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 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.
<PAGE>
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 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 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
<PAGE>
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 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.
<PAGE>
(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.
(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.
<PAGE>
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.
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.
<PAGE>
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.
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.
<PAGE>
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 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:
<PAGE>
[Seal] THE BOEING COMPANY,
Attest: by
- ------------------------ --------------------
Assistant Secretary Name:
Title:
[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 th 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
th day of ,
1996.
- ------------------------
Notary Public
<PAGE>
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK, )
On this th 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
th day of ,
1996.
- -----------------------
Notary Public
<PAGE>
STATE OF WASHINGTON, )
) ss.:
COUNTY OF KING, )
On this th 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
th day of ,
1996.
- ------------------------
Notary Public
Exhibit 15
October 25, 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. 1 to Registration Statement No. 333-11777
on Form S-3.
We are also aware that the aforementioned reports, pursuant to Rule
4 36(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
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
Board of Directors
The Boeing Company
We consent to the incorporation by reference in this Amendment No. 1
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
October 25, 1996
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 1
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
October 25, 1996
EXHIBIT 24.1
POWER OF ATTORNEY
Each of the officers and directors of The Boeing Company whose
signature appears below hereby constitutes and appoints Philip M.
Condit, Boyd E. Givan and Douglas P. Beighle, and each of them, his
true and lawful attorneys and agents, with full power of substitution,
each with power to act alone, to sign, execute, and file with the
Securities and Exchange Commission on behalf of the undersigned in any
and all capacities any amendment or amendments to this registration
statement on Form S-3, including any post-effective amendments, and
each of the undersigned does hereby ratify and confirm all that each
of said attorneys and agents, or his substitutes, shall do or cause to
be done by virtue hereof.
Signature Title
--------- -----
/s/ STANLEY HILLER, JR. Director
- ---------------------------------
(Stanley Hiller, Jr.)
/s/ CHARLES M. PIGOTT Director
- ---------------------------------
(Charles M. Pigott)
Director
