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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 12, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BRUNSWICK CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 36-0848180
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
1 N. FIELD CT.
LAKE FOREST, ILLINOIS 60045-4811
(847) 735-4700
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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ROBERT T. MCNANEY
VICE PRESIDENT AND GENERAL COUNSEL
BRUNSWICK CORPORATION
1 N. FIELD CT.
LAKE FOREST, ILLINOIS 60045-4811
(847) 735-4305
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPY TO:
ROBERT E. CURLEY
MAYER, BROWN & PLATT
190 SOUTH LASALLE STREET
CHICAGO, ILLINOIS 60603
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this registration statement as the
Registrant shall determine.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
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If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED(1) REGISTERED PER UNIT PRICE(2) FEE
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Common Stock, par value $.75 per share(3)...
Preferred Stock, par value $.75 per share...
Depository Shares Representing Preferred
Stock,
par value $.75 per share.................. (4)(5) (4) $600,000,000(4)(5) $172,413.79(5)
Debt Securities.............................
Warrants to Purchase Common Stock...........
Warrants to Purchase Preferred Stock........
Warrants to Purchase Debt Securities........
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</TABLE>
(1) Securities registered hereunder (the "Offered Securities") may be sold
separately, together or as units with other Offered Securities registered
hereunder. The Offered Securities registered hereunder also include such
indeterminate number of shares of Common Stock and Preferred Stock that may
be issued upon conversion of convertible debt securities or convertible
preferred stock.
(2) Estimated in accordance with Rule 457 solely for the purpose of computing
the registration fee.
(3) Includes preferred stock purchase rights.
(4) Pursuant to Rule 457(o) under the Securities Act of 1933, as amended (the
"Securities Act"), which permits the registration fee to be calculated on
the basis of the maximum offering price of all the securities listed, the
table does not specify by each class information as to the amount to be
registered, proposed maximum offering price per unit or proposed maximum
aggregate offering price.
(5) Of the $600,000,000 of Offered Securities registered hereby, $100,000,000
aggregate principal amount of debt securities were registered pursuant to
Registration Statement No. 33-61512 and are unissued as of the date hereof.
Of the $600,000,000 of Offered Securities registered hereby, the
$100,000,000 of debt securities will remain designated as such. A
registration fee of $31,250 was previously paid with respect to such debt
securities.
Pursuant to Rule 429 under the Securities Act, the Prospectus filed as part
of this Registration Statement relates to the securities registered hereby,
including the remaining unsold $100,000,000 principal amount of debt securities
previously registered by Registrant under its Registration Statement on Form S-3
(File No. 33-61512). Such Registration Statement is amended to reflect the
information contained herein.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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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 AUGUST 12, 1996
PROSPECTUS
$600,000,000
[LOGO]
BRUNSWICK CORPORATION
COMMON STOCK, PREFERRED STOCK, DEPOSITORY SHARES, DEBT SECURITIES,
WARRANTS TO PURCHASE COMMON STOCK, WARRANTS TO PURCHASE PREFERRED STOCK AND
WARRANTS TO PURCHASE DEBT SECURITIES
Brunswick Corporation, a Delaware corporation (the "Company"), may from
time to time offer in one or more series (i) shares of Common Stock, par value
$.75 per share (the "Common Stock"), (ii) whole or fractional shares of
Preferred Stock, par value $.75 per share (collectively, "Preferred Stock"),
(iii) Preferred Stock represented by depository shares ("Depository Shares"),
(iv) unsecured debt securities ("Debt Securities"), (v) warrants to purchase
Common Stock ("Common Stock Warrants"), (vi) warrants to purchase Preferred
Stock ("Preferred Stock Warrants"), and (vii) warrants to purchase Debt
securities ("Debt Warrants"), with an aggregate public offering price of up to
$600,000,000, on terms to be determined at the time or times of offering. The
Common Stock, Preferred Stock, Depository Shares, Debt Securities, Common Stock
Warrants, Preferred Stock Warrants and Debt Warrants (collectively referred to
herein as the "Offered Securities") may be offered, separately or together, in
separate classes or series, in amounts, at prices and on terms to be set forth
in one or more supplements to this Prospectus (each, a "Prospectus Supplement").
All specific terms of the offering and sale of the Offered Securities in
respect of which this Prospectus is being delivered will be set forth in the
applicable Prospectus Supplement and will include, where applicable: (i) in the
case of Common Stock, any public offering price and the aggregate number of
shares offered; (ii) in the case of Preferred Stock, the specific class, series,
title and stated value, any dividend, liquidation, redemption, conversion,
voting and other rights, any dividend payment dates, any sinking fund
provisions, the aggregate number of shares offered and any public offering
price; (iii) in the case of Depository Shares, the aggregate number of shares
offered, the shares of whole or fractional Preferred Stock represented by each
such Depository Share and any public offering price; (iv) in the case of Debt
Securities, the designation, aggregate principal amount, designated currency or
currency units, rate or method of calculation of interest and dates for payment
thereof, maturity, authorized denominations, any public offering price, any
redemption or prepayment rights at the option of the Company or any other
special terms of the Debt Securities; (v) in the case of Common Stock Warrants,
the duration, offering price, exercise price and detachability features; (vi) in
the case of Preferred Stock Warrants, description of the Preferred Stock for
which each warrant will be exercisable and the duration, offering price,
exercise price and detachability features; and (vii) in the case of Debt
Warrants, description of the Debt Securities for which each warrant will be
exercisable and the duration, offering price, exercise price and detachability
features.
The applicable Prospectus Supplement will also contain information, where
applicable, about certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Offered Securities
covered by that Prospectus Supplement.
The Offered Securities may be offered directly, through agents designated
from time to time by the Company, or to or through underwriters or dealers. If
any agents or underwriters are involved in the sale of any of the Offered
Securities, their names and any applicable purchase price, fee, commission or
discount arrangement between or among them will be set forth in or will be
calculable from the information set forth in the applicable Prospectus
Supplement. No Offered Securities may be sold without delivery of the applicable
Prospectus Supplement describing the method and terms of the offering of those
Offered Securities. See "Plan of Distribution" for possible indemnification
arrangements with underwriters, dealers and agents.
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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.
------------------------
This Prospectus may not be used to consummate sales of the Offered Securities
unless accompanied by a Prospectus Supplement.
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, 1996
<PAGE> 3
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR AN APPLICABLE PROSPECTUS
SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER, DEALER
OR AGENT. THIS PROSPECTUS AND ANY APPLICABLE PROSPECTUS SUPPLEMENT DO NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES
OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT 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 DATE HEREOF OR THEREOF.
IN CONNECTION WITH THIS OFFERING, UNDERWRITERS, IF ANY, MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE OFFERED
SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE
OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZATION, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the offices of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549 or at its Regional Offices at Seven World Trade Center, 13th Floor,
New York, New York 10048 and Citicorp Center, Suite 1400, 500 West Madison
Street, Chicago, Illinois 60661. Copies of such material can be obtained by mail
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates, or at the Commission's world wide
web site at http://www.sec.gov. In addition, reports, proxy statements and other
information concerning the Company may be inspected and copied at the offices of
the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005,
the Chicago Stock Exchange, 440 South LaSalle Street, Chicago, Illinois 60605,
and the Pacific Stock Exchange, Inc., 301 Pine Street, San Francisco, California
94104.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act of 1933, as amended (the "Securities Act"), which
relates to the Offered Securities (the "Registration Statement"). This
Prospectus omits certain of the information contained in the Registration
Statement, and reference is hereby made to the Registration Statement and to the
exhibits thereto for further information with respect to the Company and the
Offered Securities. The Registration Statement may be inspected without charge
by anyone at the office of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, and copies of all or any part thereof may be obtained from the
Commission upon payment of the prescribed fees. Any statements contained herein
concerning the provisions of any document are not necessarily complete, and, in
each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated in this Prospectus by reference: (i) the Company's Annual Report on
Form 10-K for the year ended December 31, 1995; (ii) the Company's Quarterly
Reports on Form 10-Q for the Quarters ended March 31, 1996 and June 30, 1996;
(iii) the Company's Current Report on Form 8-K dated February 9, 1996; and (iv)
the description of the Preferred Stock Purchase Rights contained in the
Company's Registration Statement on Form 8-A dated March 13, 1996.
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All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date hereof and prior to the termination of
the offering of the Offered Securities shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing such documents.
Any statement contained in a document incorporated or deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a Prospectus is delivered a copy of any
and all of the information that has been incorporated by reference herein (other
than exhibits to such documents) upon written or oral request. Requests for such
copies should be directed to: Richard S. O'Brien, Vice President and Treasurer,
1 N. Field Ct., Lake Forest, Illinois 60045-4811 (telephone (847) 735-4351).
THE COMPANY
Brunswick Corporation (the "Company") is a multinational company with
operations in two industry segments: Recreation and Marine. The principal
executive offices of the company are located at 1 N. Field Ct., Lake Forest,
Illinois 60045-4811 (telephone (847) 735-4700).
RECREATION
There are two divisions in the Recreation industry segment: Brunswick
Outdoor Recreation Group and Brunswick Indoor Recreation Group.
The Brunswick Outdoor Recreation Group manufactures, assembles, purchases
and sells spincast, spinning and baitcast fishing reels, rods, reel/rod
combinations, Martin fly reels and reel/rod combinations, and Swivl-Eze fishing
pedestals and ski tows and pylons. The Group also manufactures and sells
electric trolling motors. In March 1996 the Group acquired Roadmaster
Industries, Inc.'s Nelson/Weather-Rite Division, which manufactures, purchases
and sells camping products including sleeping bags, tents, backpacks, canvas
bags, rainwear, waders and portable stoves.
The Brunswick Indoor Recreation Group manufactures and sells products for
the bowling industry, including bowling lanes, automatic pinsetters, ball
returns, computerized scoring equipment and business systems. In addition, the
Group manufactures and sells seating and locker units for bowling centers;
bowling pins, lane finishes and supplies; and bowling balls and bags. The Group
also sells billiards tables which are manufactured for the Company to its
specifications.
The Brunswick Indoor Recreation Group also operates 126 recreation centers
worldwide, and its joint ventures operate an additional 28 centers. Recreation
centers are bowling centers which offer, in varying degrees depending on size
and location, the following additional activities and services: billiards and
other family games, children's playrooms, restaurants and cocktail lounges.
MARINE
The Marine industry segment consists of the Mercury Marine Division, which
manufactures and sells marine propulsion systems, and the US Marine and Sea Ray
Divisions and the Salt Water Fishing Boats Group, which manufacture and sell
pleasure and fishing boats. The Company believes it has the largest dollar
volume of sales of recreational marine engines and pleasure boats in the world.
The Mercury Marine Division manufactures and sells Mercury, Mariner and
Force outboard motors, MerCruiser gasoline and diesel inboard and stern drive
engines, the Sport Jet propless jet system and replacement parts and
accessories.
The US Marine Division builds and sells several brands of fiberglass
pleasure and fishing boats, ranging in size from 16 to 56 feet. Bayliner is the
Division's oldest and most well known brand, with offerings that include jet
powered boats, family runabouts, cabin cruisers, sport fishing boats and luxury
motor yachts. Other brands
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include Maxum (runabouts and cabin cruisers), Trophy (sport fishing boats), and
Quantum (freshwater fishing boats).
The Sea Ray Division builds and sells Sea Ray fiberglass boats from 14 to
65 feet in length, including luxury motor yachts, cabin cruisers, sport fishing
boats, sport boats, runabouts, water skiing boats, and jet powered boats.
The Salt Water Fishing Boats Group includes the Boston Whaler line of
offshore boats, which was acquired in May 1996, and Robalo and Wahoo! fishing
boats.
USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Offered Securities
for general corporate purposes, including expansion of existing businesses and
investments in business opportunities as they may arise. Pending such use, the
net proceeds may be temporarily invested in short-term investments.
RATIO OF EARNINGS TO FIXED CHARGES OF THE COMPANY
The following table sets forth the ratio of earnings to fixed charges of
the Company for the periods indicated:
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
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1996 1995 1995 1994 1993 1992 1991
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<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges(a)........................... 10.5x 7.2x 6.2x 6.6x 3.5x 2.6x --
Inadequacy of coverage(b).............. $40.4
</TABLE>
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(a) For computation of the ratio of earnings to fixed charges, "earnings" have
been calculated by adding fixed charges (excluding capitalized interest) to
earnings before income taxes and then deducting the undistributed earnings
of affiliates. Fixed charges consist of interest expense, estimated interest
portion of rental expense and capitalized interest.
(b) The Company's 1991 loss from continuing operations includes litigation
charges of $38.0 million ($23.6 million after-tax). The Company was in
compliance with its credit agreements during that year.
GENERAL DESCRIPTION OF THE OFFERED SECURITIES
The Company may offer under this Prospectus Common Stock, Preferred Stock,
Depository Shares, Debt Securities, Common Stock Warrants, Preferred Stock
Warrants, or Debt Warrants or any combination of the foregoing, either
individually or as units consisting of two or more Offered Securities. The
aggregate offering price of Offered Securities offered by the Company under this
Prospectus will not exceed $600,000,000. If Offered Securities are offered as
units, the terms of the units will be set forth in a Prospectus Supplement.
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DESCRIPTION OF THE CAPITAL STOCK
GENERAL
The authorized capital stock of the Company consists of 200,000,000 shares
of Common Stock, par value $.75 per share, of which 98,296,697 were outstanding
as of July 19, 1996, and 12,500,000 shares of Preferred Stock, par value $.75
per share, none of which are outstanding.
COMMON STOCK
Each share of Common Stock is entitled to one vote at all meetings of
stockholders of the Company for the election of directors and all other matters
submitted to stockholder vote. The Common Stock does not have cumulative voting
rights. Accordingly, the holders of a majority of the outstanding shares of
Common Stock can elect all the directors if they chose to do so. Dividends may
be paid to the holders of Common Stock when, as and if declared by the Board of
Directors of the Company out of funds legally available therefor. The Common
Stock has no preemptive or similar rights. Upon the liquidation, dissolution or
winding up of the affairs of the Company, any assets remaining after provision
for payment of all liabilities would be distributed pro rata among holders of
Common Stock. The shares of Common Stock currently outstanding are fully paid
and nonassessable. The shares of Common Stock outstanding are, and the shares of
Common Stock offered hereby will be, upon issuance against full payment of the
purchase price therefor, fully paid and nonassessable.
The Company's Certificate of Incorporation contains provisions requiring,
with certain exceptions, any merger, consolidation, disposition of assets or
similar business combination with a person who owns 5% or more of the shares of
stock of the Company entitled to vote in elections of directors to be approved
by the affirmative vote of the holders of two-thirds of the shares of stock
entitled to vote in elections of directors which are not beneficially owned by
such person. The Certificate of Incorporation also requires, with certain
exceptions, that two independent experts conclude that the terms of any such
merger, consolidation, disposition of assets or similar business combination are
fair to unaffiliated stockholders and that the opinion of these experts be
included in a proxy statement mailed to stockholders. The foregoing provisions
may be amended only by the affirmative vote of the holders of two-thirds of the
shares of stock entitled to vote in elections of directors, excluding any shares
held by a person who owns 5% or more of the outstanding shares.
The Company's Certificate of Incorporation divides the Board of Directors
into three classes that serve staggered three-year terms; sets the number of
directors at not less than six and not more than 15; permits the number of
directors to be increased or decreased within the foregoing range by vote of 80%
of the directors or the holders of 80% of the outstanding shares of stock
entitled to vote in elections of directors; authorizes the by-laws to establish
the procedures for advance notice for stockholder nominations of directors;
permits such nomination procedures to be amended only by vote of 80% of the
directors or the holders of 80% of the outstanding shares of stock entitled to
vote in elections of directors; gives the Board of Directors the exclusive power
to fill interim vacancies and to determine the qualifications of directors;
prohibits the removal of directors without cause; requires that stockholder
action be taken at a meeting of stockholders, except for action by written
consents of the holders of preferred stock authorized by the Board of Directors;
and requires the affirmative vote of the holders of 80% of the shares entitled
to vote in elections of directors to amend the foregoing provisions.
PREFERRED STOCK PURCHASE RIGHTS
On February 5, 1996, the Board of Directors of the Company declared a
dividend distribution of one preferred stock purchase right (the "Rights") for
each outstanding share of Common Stock of the Company, pursuant to a Rights
Agreement, dated as of February 5, 1996, between the Company and Harris Trust
and Savings Bank. Prior to the Distribution Date (as hereinafter defined), the
Company will issue one Right with each new share of Common Stock so that all
such shares will have attached Rights. The Company is issuing one Right with
each share of Common Stock offered hereby. The following description does not
purport to be complete and is qualified in its entirety by reference to the
Rights Agreement.
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Each holder of Rights until April 1, 2006 (but only after the occurrence of
a Distribution Date) may purchase one one-thousandth of a share of Series A
Junior Participating Preferred Stock, par value $.75 per share (the "Series A
Preferred Stock"), at price of $85 per one one-thousandth share, subject to
adjustment (the "Purchase Price"). The Rights will be represented by the Common
Stock certificates and will not be exercisable, or transferable apart from the
Common Stock, until the earlier to occur of (i) the tenth day after the first
public announcement by the Company that a person has become an Acquiring Person
(as defined below) or (ii) the fifteenth business day (or such later date as the
Board of Directors may decide prior to such time as any person becomes an
Acquiring Person) after the commencement of (or a public announcement of the
intention to make) a tender offer or exchange offer that would result in such
person or group beneficially owning a total of 15% or more of the outstanding
Common Stock (the earlier of such dates being called the "Distribution Date").
On the date when the Company announces that a person (other than the
Company, any subsidiary or any employee benefit plan of the Company or a
subsidiary) together with related parties has acquired, or has obtained the
right to acquire, beneficial ownership of 15% or more of the outstanding Common
Stock (an "Acquiring Person"), each Right (other than Rights owned by the
Acquiring Person and any transferees thereof, each of whose Rights become void)
will, subject to certain exceptions, become a right to buy, at the Purchase
Price, that number of shares of Common Stock having a market value of twice the
Purchase Price.
Under certain circumstances in which the Company is acquired in a merger or
other business combination transaction or 50% or more of its consolidated assets
or earning power are sold, each holder of Rights (other than the Acquiring
Person) has the right to buy, at the Purchase Price, common stock of the
acquiring company (or the Company, if it is the surviving entity) having a
market value of twice the Purchase Price.
The Purchase Price payable and the number of shares of Series A Preferred
Stock or Common Stock or other securities issuable upon exercise of the Rights
are subject to adjustment in certain circumstances. At any time prior to the
time a person shall become an Acquiring Person, the Company may elect to redeem
the Rights in whole, but not in part, at a price of $.01 per Right. The Rights
will expire on April 1, 2006, unless earlier redeemed by the Company. Until a
Right is exercised, the holder thereof, as such, will have no rights as a
stockholder of the Company, including, without limitation, the right to vote or
to receive dividends.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person who attempts to acquire the Company without
conditioning any offer on the Rights being redeemed or a substantial number of
Rights being acquired. However, the Rights will not interfere with a transaction
approved by the Company's Board of Directors prior to the date upon which a
person has become a 15% stockholder, because the Rights can be redeemed until
that time.
PREFERRED STOCK
Under the Certificate of Incorporation, the Board of Directors of the
Company may direct the issuance of up to 12,500,000 shares of Preferred Stock in
one or more series and with rights, preferences, privileges and restrictions,
including dividend rights, voting rights, conversion rights, terms of redemption
and liquidation preferences, that may be fixed or designated by the Board of
Directors pursuant to a certificate of designation without any further vote or
action by the Company's stockholders. As of February 5, 1996, the Board of
Directors had designated 150,000 shares of the Preferred Stock as Series A
Junior Participating Preferred Stock for possible issuance in connection with
the Rights. The issuance of Preferred Stock may have the effect of delaying,
deferring or preventing a change in control of the Company. Preferred Stock,
upon issuance against full payment of the purchase price therefor, will be fully
paid and nonassessable. The specific terms of a particular series of Preferred
Stock will be described in the Prospectus Supplement relating to that series.
The description of Preferred Stock set forth below and the description of the
terms of a particular series of Preferred Stock set forth in the related
Prospectus Supplement do not purport to be complete and are qualified in their
entirety by reference to the certificate of designation relating to that series.
The related Prospectus Supplement will contain a description of certain United
States federal income tax consequences relating to the purchase and ownership of
the series of Preferred Stock described in such Prospectus Supplement.
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The rights, preferences, privileges and restrictions of the Preferred Stock
of each series will be fixed by the certificate of designation relating to such
series. A Prospectus Supplement, relating to each series, will specify the
following terms of the Preferred Stock:
(a) The maximum number of shares to constitute the series and the
distinctive designation thereof;
(b) The annual dividend rate, if any, on shares of the series, whether
such rate is fixed or variable or both, the date or dates from which
dividends will begin to accrue or accumulate and whether dividends will be
cumulative;
(c) The price at and the terms and conditions on which the shares of
the series may be redeemed, including the time during which shares of the
series may be redeemed and any accumulated dividends thereon that the
holders of shares of the series shall be entitled to receive upon the
redemption thereof;
(d) The liquidation preference, if any, and any accumulated dividends
thereon, that the holders of shares of the series shall be entitled to
receive upon the liquidation, dissolution or winding up of the affairs of
the Company;
(e) Whether or not the shares of the series will be subject to
operation of a retirement or sinking fund, and, if so, the extent and
manner in which any such fund shall be applied to the purchase or
redemption of the shares of the series for retirement or for other
corporate purposes, and the terms and provisions relating to the operation
of such fund;
(f) The terms and conditions, if any, on which the shares of the
series shall be convertible into, or exchangeable for, shares of any other
class or classes of capital stock of the Company or a third party or of any
other series of the same class, including the price or prices or the rate
or rates of conversion or exchange and the method, if any, of adjusting the
same and whether such conversion is mandatory or optional;
(g) The stated value of the shares of such series;
(h) The voting rights, if any, of the shares of the series; and
(i) Any or all other preferences and relative, participating, optional
or other special rights or qualifications, limitations or restrictions
thereof.
In the event of any voluntary liquidation, dissolution or winding up of the
affairs of the Company, the holders of any series of any class of Preferred
Stock shall be entitled to receive in full out of the assets of the Company,
including its capital, before any amount shall be paid or distributed among the
holders of the Common Stock or any other shares ranking junior to such series,
the amounts fixed by the Board of Directors with respect to such series and set
forth in the applicable Prospectus Supplement plus an amount equal to all
dividends accrued and unpaid thereon to the date of payment of the amount due
pursuant to such liquidation, dissolution or winding up the affairs of the
Company. After payment to the holders of the Preferred Stock of the full
preferential amounts to which they are entitled, the holders of Preferred Stock,
as such, shall have no right or claim to any of the remaining assets of the
Company.
If liquidating distributions shall have been made in full to all holders of
Preferred Stock, the remaining assets of the Company shall be distributed among
the holders of any other classes or series of capital stock ranking junior to
the Preferred Stock upon liquidation, dissolution of winding up, according to
their respective rights and preferences and in each case according to their
respective number of shares. The merger or consolidation of the Company into or
with any other corporation, or the sale, lease or conveyance of all or
substantially all of the assets of the Company, shall not constitute a
dissolution, liquidation or winding up of the Company.
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DESCRIPTION OF DEPOSITORY SHARES
GENERAL
The Company may offer receipts ("Depository Receipts") for Depository
Shares, each of which will represent a fractional interest in a share of a
particular series of a class of Preferred Stock, as specified in the applicable
Prospectus Supplement. Preferred Stock of each series of each class represented
by Depository Shares will be deposited under a separate Deposit Agreement (each,
a "Deposit Agreement") among the Company, the depository named therein (such
depository or its successor, the "Preferred Stock Depository") and the holders
from time to time of the Depository Receipts. Subject to the terms of the
Deposit Agreement, each owner of a Depository Receipt will be entitled, in
proportion to the fractional interest of a share of the particular series of a
class of Preferred Stock represented by the Depository Shares evidenced by such
Depository Receipt, to all the rights and preferences of the Preferred Stock
represented by such Depository Shares (including dividend, voting, conversion,
redemption and liquidation rights).
The Depository Shares will be evidenced by Depository Receipts issued
pursuant to the applicable Deposit Agreement. Immediately following the issuance
and delivery of the Preferred Stock by the Company to the Preferred Stock
Depository, the Company will cause the Preferred Stock Depository to issue, on
behalf of the Company, the Depository Receipts. Copies of the applicable form of
Deposit Agreement and Depository Receipt may be obtained from the Company upon
request.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depository will distribute all cash dividends or other
cash distributions received in respect of the Preferred Stock to the record
holders of the Depository Receipts evidencing the related Depository Shares in
proportion to the number of such Depository Receipts owned by such holder,
subject to certain obligations of holders to file proofs, certificates and other
information and to pay certain charges and expenses to the Preferred Stock
Depository.
In the event of a distribution other than in cash, the Preferred Stock
Depository will distribute property received by it to the record holders of
Depository Receipts entitled thereto, subject to certain obligations of holders
to file proofs, certificates and other information and to pay certain charges
and expenses to the Preferred Stock Depository, unless the Preferred Stock
Depository determines that it is not feasible to make such distribution, in
which case the Preferred Stock Depository may, with the approval of the Company,
sell such property and distribute the net proceeds from such sale to such
holders.
WITHDRAWAL OF SHARES
Upon surrender of the Depository Receipts at the corporate trust office of
the Preferred Stock Depository (unless the related Depository Shares have
previously been called for redemption), the holders thereof will be entitled to
delivery at such office, to or upon such holder's order, of the number of whole
shares of Preferred Stock and any money or other property represented by the
Depository Shares evidenced by such Depository Receipts. Holders of Depository
Receipts will be entitled to receive whole shares of the related Preferred Stock
on the basis of the proportion of Preferred Stock represented by each Depository
Share as specified in the applicable Prospectus Supplement, but holders of such
Preferred Stock will not thereafter be entitled to receive Depository Shares
therefor. If the Depository Receipts delivered by the holder evidence a number
of Depository Shares in excess of the number of Depository Shares representing
the number of shares of Preferred Stock to be withdrawn, the Preferred Stock
Depository will deliver to such holder at the same time a new Depository Receipt
evidencing such excess number of Depository Shares.
REDEMPTION OF DEPOSITORY SHARES
Whenever the Company redeems Preferred Stock held by the Preferred Stock
Depository, the Preferred Stock Depository will redeem as of the same redemption
date the number of Depository Shares representing the Preferred Stock so
redeemed, provided the Company shall have paid in full to the Preferred Stock
Depository the redemption price of the Preferred Stock to be redeemed plus an
amount equal to any accrued and unpaid dividends (except, with respect to
noncumulative shares of Preferred Stock, dividends for the
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current dividend period only) thereon to the date fixed for redemption. The
redemption price per Depository Share will be equal to the redemption price and
any other amounts per share payable with respect to the Preferred Stock. If less
than all the Depository Shares are to be redeemed, the Depository Shares to be
redeemed will be selected by the Preferred Stock Depository by lot.
After the date fixed for redemption, the Depository Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depository Receipts evidencing the Depository Shares so called
for redemption will cease, except the right to receive any moneys payable upon
such redemption and any money or other property to which the holders of such
Depository Receipts were entitled upon such redemption upon surrender thereof to
the Preferred Stock Depository.
VOTING OF THE UNDERLYING PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Preferred Stock Depository will mail the
information contained in such notice of meeting to the record holders of the
Depository Receipts evidencing the Depository Shares which represent such
Preferred Stock. Each record holder of Depository Receipts evidencing Depository
Shares on the record date (which will be the same date as the record date for
the Preferred Stock) will be entitled to instruct the Preferred Stock Depository
as to the exercise of the voting rights pertaining to the amount of Preferred
Stock represented by such holder's Depository Shares. The Preferred Stock
Depository will vote the amount of Preferred Stock represented by such
Depository Shares in accordance with such instructions, and the Company will
agree to take all reasonable action which may be deemed necessary by the
Preferred Stock Depository in order to enable the Preferred Stock Depository to
do so. The Preferred Stock Depository will abstain from voting the amount of
Preferred Stock represented by such Depository Shares to the extent it does not
receive specific instructions from the holders of Depository Receipts evidencing
such Depository Shares.
LIQUIDATION PREFERENCE
In the event of liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, each holder of a Depository Receipt will be
entitled to the fraction of the liquidation preference accorded each share of
Preferred Stock represented by the Depository Share evidenced by such Depository
Receipt, as set forth in the applicable Prospectus Supplement.
CONVERSION OF PREFERRED STOCK
The Depository Shares, as such, are not convertible into Common Stock or
any securities or property of the Company. Nevertheless, if so specified in the
applicable Prospectus Supplement relating to an offering of Depository Shares,
the Depository Receipts may be surrendered by holders thereof to the Preferred
Stock Depository with written instructions to the Preferred Stock Depository to
instruct the Company to cause conversion of the Preferred Stock represented by
the Depository Shares evidenced by such Depository Receipts into whole shares of
Common Stock, other Preferred Stock of the Company or other shares of capital
stock, and the Company has agreed that upon receipt of such instructions and any
amounts payable in respect thereof, it will cause the conversion thereof
utilizing the same procedures as those provided for delivery of Preferred Stock
to effect such conversion. If the Depository Shares evidenced by a Depository
Receipt are to be converted in part only, one or more new Depository Receipts
will be issued for any Depository Shares not to be converted. No fractional
shares of Common Stock will be issued upon conversion, and if such conversion
will result in a fractional share being issued, an amount will be paid in cash
by the Company equal to the value of the fractional interest based upon the
closing price of the Common Stock on the last business day prior to the
conversion.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depository Receipt evidencing the Depository Shares which
represent the Preferred Stock and any provision of the Deposit Agreement may at
any time be amended by agreement between the Company and the Preferred Stock
Depository. However, any amendment that materially and adversely alters
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the rights of the holders of Depository Receipts will not be effective unless
such amendment has been approved by the existing holders of at least a majority
of the Depository Shares evidenced by the Depository Receipts then outstanding.
The Deposit Agreement may be terminated by the Company upon not less than
30 days' prior written notice to the Preferred Stock Depository if a majority of
each class of Depository Shares affected by such termination consents to such
termination, whereupon the Preferred Stock Depository shall deliver or make
available to each holder of Depository Receipts, upon surrender of the
Depository Receipts held by such holder, such number of whole or fractional
shares of Preferred Stock as are represented by the Depository Shares evidenced
by such Depository Receipts. In addition, the Deposit Agreement will
automatically terminate if (i) all outstanding Depository Shares shall have been
redeemed, (ii) there shall have been a final distribution in respect of the
related Preferred Stock in connection with any liquidation, dissolution or
winding up of the Company and such distribution shall have been distributed to
the holders of Depository Receipts evidencing the Depository Shares representing
such Preferred Stock or (iii) each related share of Preferred Stock shall have
been converted into capital stock of the Company not so represented by
Depository Shares.
CHARGES OF PREFERRED STOCK DEPOSITORY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the Deposit Agreement. In addition, the
Company will pay the fees and expenses of the Preferred Stock Depository in
connection with the performance of its duties under the Deposit Agreement.
However, holders of the Depository Receipts will pay the fees and expenses of
the Preferred Stock Depository for any duties requested by such holders to be
performed which are outside of those expressly provided for in the Deposit
Agreement.
RESIGNATION AND REMOVAL OF PREFERRED STOCK DEPOSITORY
The Preferred Stock Depository may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at any time remove
the Preferred Stock Depository, any such resignation or removal to take effect
upon the appointment of a successor Preferred Stock Depository. A successor
Preferred Stock Depository must be appointed within 60 days after delivery of
the notice of resignation or removal and must be a bank or trust company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000.
MISCELLANEOUS
The Preferred Stock Depository will forward to holders of Depository
Receipts any reports and communications from the Company that are received by
the Preferred Stock Depository with respect to the related Preferred Stock.
Neither the Preferred Stock Depository nor the Company will be liable if it
is prevented from or delayed in, by law or any circumstances beyond its control,
performing its obligations under the Deposit Agreement. The obligations of the
Company and the Preferred Stock Depository under the Deposit Agreement will be
limited to performing their duties thereunder in good faith and without gross
negligence or willful misconduct, and the Company and the Preferred Stock
Depository will not be obligated to prosecute or defend any legal proceeding in
respect of any Depository Receipts, Depository Shares or Preferred Stock
represented thereby unless satisfactory indemnity is furnished. The Company and
the Preferred Stock Depository may rely on written advice of counsel or
accountants, or information provided by persons presenting Preferred Stock
represented thereby for deposit, holders of Depository Receipts or other persons
believed to be competent to give such information, and on documents believed to
be genuine and signed by a proper party.
If the Preferred Stock Depository shall receive conflicting claims,
requests or instructions from any holders of Depository Receipts, on the one
hand, and the Company, on the other hand, the Preferred Stock Depository shall
be entitled to act on such claims, requests or instructions received from the
Company.
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DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture (the
"Indenture"), dated as of March 15, 1987, between the Company and Harris Trust
and Savings Bank, as successor to First Trust of Illinois, National Association
(as the successor to Bank of America Illinois, formerly known as Continental
Illinois National Bank and Trust Company of Chicago), as trustee (the
"Trustee"), a copy of which has been filed as an exhibit to the Registration
Statement. The following summary of certain provisions of the Indenture does
not purport to be complete and is subject to, and is qualified in its entirety
by reference to, all the provisions of the Indenture, including the definitions
therein of certain terms. Wherever particular sections or defined terms of the
Indenture are referred to, it is intended that such sections or defined terms
shall be incorporated herein by reference.
GENERAL
The Indenture does not limit the aggregate principal amount of the Debt
Securities or of any particular series of Debt Securities and provides that Debt
Securities may be issued thereunder from time to time in one or more series. The
Debt Securities will be issued in fully registered form in denominations which
may be specified for each particular series, but in the absence of such
specification, shall be in denominations of $1,000 and integral multiples
thereof or the equivalent thereof in foreign denominated currency or ECU. Debt
Securities will be unsecured and will rank on a parity with other unsecured and
unsubordinated indebtedness of the Company. Unless otherwise described in the
Prospectus Supplement relating to the Debt Securities of any particular series,
there are no covenants or provisions contained in the Indenture which may afford
the holders of the Debt Securities protection in the event of a highly leveraged
transaction involving the Company. Any such highly leveraged transaction may
adversely affect holders of the Debt Securities.
Reference is made to the Prospectus Supplement relating to the Debt
Securities of any particular series for the following terms thereof: (1) the
title of the Debt Securities; (2) any limit on the aggregate principal amount of
the Debt Securities; (3) the date or dates on which the Debt Securities will
mature; (4) the rate or rates (which may be fixed or variable) per annum at
which the Debt Securities will bear interest, if any, and the date from which
any such interest will accrue; (5) the times at which any such interest will be
payable; (6) the currency or currencies for which Debt Securities may be
purchased and currency or currencies in which principal of and any interest
thereon may be payable; (7) if the currency for which Debt Securities may be
purchased or in which principal of and interest thereon may be payable is at the
purchaser's election, the manner in which such an election may be made; (8) the
dates, if any, on which and the price or prices at which the Debt Securities
may, pursuant to any mandatory or optional sinking fund provisions, be redeemed
by the Company and other detailed terms and provisions of any such sinking
funds; and (9) the date, if any, after which and the price or prices at which
the Debt Securities may, pursuant to any optional redemption provisions, be
redeemed at the option of the Company or of the holder thereof, and other
detailed terms and provisions of any such optional redemption.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
principal and premium, if any, will be payable at the Company's offices or
agencies in Chicago, Illinois, the Borough of Manhattan in the City and State of
New York and such other place or places as the Company may designate pursuant to
the provisions of the Indenture, provided that, at the option of the Company,
payment of any interest may be made by check mailed to the address of the Person
entitled thereto as it appears in the security register. (Section 2.06.) Debt
Securities may be presented for registration of transfer or exchange at the
office of the Trustee in Chicago, at the office of the Trustee's agent in the
Borough of Manhattan and at such other place or places as the Company may
designate pursuant to the provisions of the Indenture. (Section 5.02).
Debt Securities may be issued under the Indenture as original issue
discount Debt Securities to be offered and sold at a substantial discount from
the principal amount thereof. Special federal income tax, accounting and other
considerations applicable thereto will be described in the Prospectus Supplement
relating to any such original issue discount Debt Securities.
As of June 30, 1996, $225 million principal amount of Debt Securities were
issued under the Indenture.
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RESTRICTIONS ON SECURED DEBT
The Indenture provides that the Company will not, and will not cause or
permit a Restricted Subsidiary to, incur, issue, assume or guarantee any Secured
Debt unless the Debt Securities will be secured by any Mortgage which secures
such Secured Debt, so long as such Secured Debt or any other Indebtedness
(except for the Debt Securities) secured by such Mortgage shall exist, equally
and ratably with (or prior to) any and all other obligations and indebtedness
which shall be so secured. The foregoing restrictions do not apply, however, to
(i) any Mortgage on any property hereafter acquired or constructed by the
Company or a Restricted Subsidiary to secure or provide for the payment of all
or any part of the purchase price or construction cost of such property,
including, but not limited to, any indebtedness incurred by the Company or a
Restricted Subsidiary prior to, at the time of, or within 180 days after the
later of the acquisition, the completion of construction (including any
improvements on an existing property) or the commencement of commercial
operation of such property, which indebtedness is incurred for the purpose of
financing all or any part of the purchase price thereof or construction or
improvements thereon; (ii) the acquisition of property subject to any Mortgage
upon such property existing at the time of acquisition thereof, whether or not
assumed by the Company or such Restricted Subsidiary; (iii) any Mortgage
existing on the property, or on the outstanding shares of capital stock or
indebtedness, of a corporation at the time such corporation becomes a Restricted
Subsidiary; (iv) Mortgages on property or shares of capital stock or
indebtedness of a corporation existing at the time such corporation is merged
into or consolidated with the Company or a Restricted Subsidiary or at the time
of a sale, lease or other disposition of the properties of a corporation or firm
as an entirety or substantially as an entirety to the Company or a Restricted
subsidiary (provided, however, that no such Mortgage shall extend to any other
property of the Company or such Restricted Subsidiary prior to such acquisition
or to other property thereafter acquired other than additions or improvements to
such acquired property); (v) Mortgages on property of the Company or a
Restricted Subsidiary in favor or at the request of the United States of America
or any State thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof (including
Mortgages to secure indebtedness of the pollution control or industrial revenue
bond type), in order to permit the Company or a Restricted Subsidiary to perform
any contract or subcontract made by it with or at the request of any of the
foregoing, or to secure partial, progress, advance or other payments pursuant to
any tender, bid, contract, regulation or statute or to secure any indebtedness
incurred for the purpose of financing all or any part of the purchase price or
the cost of constructing or improving the property subject to such Mortgages;
(vi) any Mortgage on any property or assets of any Restricted Subsidiary to
secure indebtedness owing by it to the Company or to a Restricted Subsidiary;
(vii) any Mortgage existing on March 15, 1987; (viii) any extension, renewal or
replacement (or successive extensions, renewals or replacements) in whole or in
part of any Mortgage permitted by clauses (i) through (vii), inclusive,
provided, however, that the principal amount of Secured Debt secured thereby
shall not exceed the principal amount of Secured Debt so secured at the time of
such extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to the property which secured the Mortgage so
extended, renewed or replaced and additions or improvements to such property;
(ix) carriers', warehousemen's, landlords', mechanics' and materialmen's
Mortgages incurred in the ordinary course of business of the Company or a
Restricted Subsidiary for sums not yet due or being contested in good faith; (x)
Mortgages for taxes or assessments or governmental charges or levies on property
owned by the Company or any of its Restricted Subsidiaries, if such taxes,
assessments, governmental charges or levies shall not at the time be due and
payable, or if the same thereafter can be paid without penalty, or if the same
are being contested in good faith; (xi) Mortgages to secure payment of worker's
compensation, customs duties or insurance premiums, to secure (or in lieu of)
customs, surety or appeal bonds, and for purposes similar to any of the above in
the regular course of business; and (xii) Mortgages created by or resulting from
any litigation or legal proceeding which at the time is currently being
contested in good faith. At June 30, 1996, assets of Unrestricted Subsidiaries
accounted for approximately 21% of the Company's total consolidated assets.
Notwithstanding the restrictions outlined above, the Company or any
Restricted Subsidiary may incur, issue, assume or guarantee Secured Debt which
would otherwise be subject to such restrictions in an aggregate amount which,
together with all other Secured Debt of the Company and its Restricted
Subsidiaries which would otherwise be subject to such restrictions (not
including Secured Debt permitted to be so secured) and
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the aggregate Attributable Debt of the Sale and Leaseback Transactions in
existence at such time (except for Sale and Leaseback Transactions the proceeds
of which shall have been or will be used to retire Funded Debt in accordance
with the procedures specified in "Restrictions on Sale and Leaseback
Transactions"), does not exceed 10% of the Consolidated Net Tangible Assets of
the Company and its Restricted Subsidiaries, determined as of a date not more
than 90 days prior thereto. (Section 5.05.)
RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS
The Indenture provides that the Company will not, and will not permit any
Restricted Subsidiary to, enter into a Sale and Leaseback Transaction unless
either (a) the Company or such Restricted Subsidiary would be entitled, pursuant
to the provisions outlined in "Restrictions on Secured Debt," to incur Secured
Debt in an amount equal to the Attributable Debt of such Sale and Leaseback
Transaction without equally and ratably securing the Securities, or (b) the
Company or a Restricted Subsidiary, within 120 days, applies an amount (which
amount shall equal the greater of (i) the net proceeds of the sale or transfer
of the property leased pursuant to such Sale and Leaseback Transaction or (ii)
the fair value of such property at the time of entering into such Sale and
Leaseback Transaction as determined by the Company's Board of Directors) to the
retirement (other than any mandatory retirement) of the Funded Debt as shown on
the most recent consolidated balance sheet of the Company and its Restricted
Subsidiaries, which Funded Debt, in the case of the Company, is not subordinated
to the prior payment of the Debt Securities of any series. In lieu of applying
all or any part of such amount to the retirement of Funded Debt, the Company, at
its option, may reduce the amount which it shall be required to apply to such
retirement by (i) delivering to the Trustee Debt Securities theretofore
purchased or otherwise acquired by the Company or (ii) receiving credit for Debt
Securities theretofore redeemed at its option or redeemed through optional
sinking fund payments, which Debt Securities have not previously been made the
basis for the reduction of a mandatory sinking fund payment. Any Debt Securities
which shall have been made the basis for a reduction in the amount of Funded
Debt required to be retired shall not be available as a credit against mandatory
sinking fund payments. (Section 5.06.)
RESTRICTIONS ON MERGER, CONSOLIDATION AND SALE, TRANSFER OR LEASE OF ASSETS
The Indenture provides that the Company shall not consolidate with or merge
into any other corporation, or sell, transfer or lease its properties and assets
substantially as an entirety to any Person, nor may any other Person consolidate
with or merge into the Company, or sell or transfer or lease its properties and
assets substantially as an entirety to the Company, unless (i) the Person (if
other than the Company) formed by or resulting from any such consolidation or
merger or which shall have purchased, received the transfer of, or leased, such
property and assets shall be a corporation organized and existing under the laws
of the United States or any State or the District of Columbia and shall
expressly assume, by a supplemental indenture, the payment of the principal of
(and premium, if any) and interest (if any) on all the Debt Securities and the
performance and observance of the covenants of the Indenture, (ii) immediately
thereafter no Event of Default and no event which after notice or lapse of time,
or both, would become an Event of Default shall have happened or be continuing,
and (iii) if, as a result of such consolidation, merger, sale, transfer or
lease, properties or assets of the Company shall cause the outstanding Debt
Securities to be secured equally and ratably with (or prior to) such Mortgage.
Notwithstanding the provisions summarized in this paragraph, the Company may,
without complying with such provisions, sell, transfer or lease all of its
property and assets to another corporation organized and existing under the laws
of the United States of America or any State or the District of Columbia if,
immediately after giving effect to such sale, transfer or lease and the receipt
of the consolidation therefor, such corporation is a wholly-owned Restricted
Subsidiary of the Company and the Company would be permitted under the Indenture
to incur at least $1 of Secured Debt. (Section 12.01.)
EVENTS OF DEFAULT
Events of Default with respect to any series of Debt Securities are defined
in the Indenture as being: default for 30 days in payment of any interest
installment due on the Debt Securities of such series; default in payment of
principal or premium, if any, on any of the Debt Securities of such series or in
making any
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mandatory sinking fund payment with respect to Debt Securities of such series;
default in performance of any other covenant in the Debt Securities of such
series or in the Indenture for 60 days after notice 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 outstanding Debt Securities of such series; certain
events of bankruptcy, insolvency and reorganization of the Company; and such
additional Events of Default as may be established with respect to the Debt
Securities of any series in the manner provided in the Indenture. If an Event of
Default occurs and is continuing, the Trustee or the holders of at least 25% in
principal amount of the outstanding Debt Securities of such series may declare
all the Debt Securities of such series to be due and payable immediately,
subject to the right of the holders of a majority in principal amount of the
outstanding Debt Securities of such series to waive such default and rescind
such declaration in certain limited circumstances. (Sections 7.01 and 7.07.)
The Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during default to act with the required standard of care, to
be indemnified by the holders of the Debt Securities of any series before
proceeding to exercise any right or power under the Indenture at the request of
such holders. (Section 8.02.) The Indenture also provides that the holders of a
majority in principal amount of the outstanding Debt Securities of any series
may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to the Debt Securities of such series. (Section 7.07.)
The Indenture contains a covenant that the Company will file annually with
the Trustee a certificate of no default or a certificate specifying any default
that exists. (Section 5.07.)
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than 66 2/3% in principal amount of
the outstanding Debt Securities of any series which would be affected by any
such supplemental indenture, to execute supplemental indentures adding any
provisions to or changing or eliminating any of the provisions of the Indenture
or modifying the rights of the holders of Debt Securities of such series, except
that no such supplemental indenture may (i) extend the fixed maturity of any
Debt Security, or reduce the rate or extend the time of payment of any interest
thereon, or reduce the principal amount thereof or any premium thereon, or
extend the time of or reduce the amount of any mandatory sinking fund payment,
or change the currency of payment of such Debt Security, or impair the rights of
the holder of such Debt Security to institute suit for the enforcement of any
payment of principal of or premium, if any, or any interest on such Debt
Security, in each case without the consent of the holder of each such Debt
Security so affected, or (ii) reduce the aforesaid percentage of Debt Securities
of any series, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of all outstanding
Debt Securities of such series. (Section 11.02.)
DEFEASANCE AND DISCHARGE
The Indenture provides that the Company, at its option, (a) will be
discharged from any and all obligations in respect of the Debt Securities
(except for certain obligations such as obligations to register the transfer or
exchange of Debt Securities, replace stolen, lost or mutilated Debt Securities,
and maintain paying agencies) and thereafter the holders of Debt Securities
shall look only to the Trustee for payment from the deposit in trust hereinafter
described, or (b) need not comply with certain restrictive covenants of the
Indenture (including those described under "Restrictions on Secured Debt,"
"Restrictions on Sale and Leaseback Transactions" and "Restrictions on Merger,
Consolidation and Sale, Transfer or Lease of Assets"), in each case if the
Company deposits with the Trustee, in trust, money, or U.S. Governmental
Obligations (or in the case of Debt Securities denominated in a foreign
currency, Foreign Government Obligations), or any combination thereof, which
through the payment of interest thereon and principal thereof in accordance with
their terms will provide money in an amount sufficient to pay all the principal
(including any mandatory sinking fund payments) of and premium, if any, and
interest on the Debt Securities on the dates such installments of interest or
principal are due in accordance with the terms of the Indenture and the Debt
Securities, provided that the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such U.S. Government Obligations (or Foreign
Government Obligations) to the payment of such
14
<PAGE> 16
installments of principal of, and premium, if any, and interest with respect to
the Debt Securities. To exercise the option referred to in (a) above, the
Company is required to deliver to the Trustee an opinion of outside counsel of
nationally recognized standing or a ruling from or published by the United
States Internal Revenue Service to the effect that the discharge would not cause
holders of Debt Securities to recognize income, gain or loss for Federal income
tax purposes. To exercise the option referred to in (b) above, the Company is
not required to deliver to the Trustee an opinion of counsel or ruling to such
effect. Defeasance provisions relating to any Debt Securities denominated in
ECUs will be set forth with more particularity in the applicable Prospectus
Supplement. (Section 4.01.)
DEFINITIONS OF CERTAIN TERMS
The following Definitions are more fully set forth in Article One of the
Indenture:
Attributable Debt means, with respect to any Sale and Leaseback Transaction
at any particular time, the present value, discounted at a rate per annum
(compounded semi-annually) equal to the effective weighted average interest rate
on the Debt Securities, of the obligation of the lessee for rental payments
(calculated in accordance with generally accepted accounting principles) due
during the remaining term of such lease (which may, if in accordance with
generally accepted accounting principles, include any period for which such
lease has been extended or may, at the option of the lessee, be extended). Such
rental payments shall not include amounts payable by the lessee for maintenance
and repairs, insurance, taxes, assessments and similar charges. In case of any
lease which is terminable by the lessee upon the payment of a penalty, such
rental payments shall also include such penalty, but no rent shall be considered
as required to be paid under such lease subsequent to the first date upon which
it may be so terminated.
Consolidated Current Liabilities means the aggregate of the current
liabilities of the Company and its Restricted Subsidiaries appearing on the most
recent available consolidated balance sheet of the Company and its Restricted
Subsidiaries, all in accordance with generally accepted accounting principles;
but excluding any obligation of the Company and its Restricted Subsidiaries
issued under a revolving credit or similar agreement if the obligation issued
under such agreement matures by its terms within twelve months from the date
thereof but by the terms of such agreement such obligation may be renewed or
extended or the amount thereof reborrowed or refunded at the option of the
Company or any Restricted Subsidiary for a term in excess of twelve months from
the date of determination.
Consolidated Net Tangible Assets means Consolidated Tangible Assets after
deduction of Consolidated Current Liabilities.
Consolidated Tangible Assets means the aggregate of all assets of the
Company and its Restricted Subsidiaries (including the value of all existing
Sale and Leaseback Transactions and any assets resulting from the capitalization
of other long-term lease obligations in accordance with generally accepted
accounting principles but excluding the value of assets or investment in any
Unrestricted Subsidiary) appearing on the most recent available consolidated
balance sheet of the Company and its Restricted Subsidiaries at their net book
values, after deducting related depreciation, amortization and other valuation
reserves and excluding (a) any capital write-up resulting from reappraisals of
assets or of other investments after March 15, 1984 (other than a write-up of
any assets) constituting part of the assets and business of another corporation
made in connection with the acquisition, direct or indirect, of the assets and
business of such other corporation) except as permitted in accordance with
generally accepted accounting principles, (b) treasury stock, and (c) patent and
trademark rights, goodwill, unamortized discounts and expenses and any other
intangible items, all in accordance with generally accepted accounting
principles.
Foreign Government Obligations means direct non-callable obligations of, or
non-callable obligations guaranteed by, a government other than that of the
United States of America or an agency of such government for the payment of
which obligations or guarantee the full faith and credit of such government is
pledged.
Funded Debt of any corporation means an Indebtedness created, issued,
incurred, assumed or guaranteed by such corporation, whether secured or
unsecured, maturing more than one year after the date of
15
<PAGE> 17
determination thereof or which may by its terms be reborrowed, refunded, renewed
or extended to a time more than twelve months after the date of determination
thereof.
Indebtedness means (a) any obligation for borrowed money, (b) any
obligation representing the deferred purchase price of property other than
accounts payable arising in connection with the purchase of inventory or
equipment on terms customary in the trade, (c) any obligation, whether or not
assumed, secured by a Mortgage on, or payable out of the proceeds or production
from, property now owned or hereafter acquired by the obligor and (d) any
obligation in respect of lease rentals which under generally accepted accounting
principles would be shown on a consolidated balance sheet of the Company and its
Restricted Subsidiaries as a liability item other than a current liability.
Mortgage means any mortgage, pledge, lien, charge, security interest,
conditional sale or other title retention agreement or other similar
encumbrance.
Person means an individual, corporation or other entity.
Principal Property means any manufacturing plant or other facility of the
Company or any Restricted Subsidiary, whether now owned or hereafter acquired,
which, in the opinion of the Board of Directors, is of material importance to
the business conducted by the Company and its Restricted Subsidiaries as a
whole.
Restricted Subsidiary means (a) any Subsidiary other than an Unrestricted
Subsidiary and (b) any Subsidiary which was an Unrestricted Subsidiary but
which, subsequent to March 15, 1987, is designated by the Board of Directors of
the Company to be a Restricted Subsidiary, provided, however, that the Company
may not designate any such Subsidiary to be a Restricted Subsidiary if the
Company would thereby breach any covenant contained in the Indenture (on the
assumptions that any outstanding Secured Debt of such Subsidiary was incurred at
the time of such designation and that any Sale and Leaseback Transaction to
which such Subsidiary is then a party was entered into at the time of such
designation).
Sale and Leaseback Transaction means the sale or transfer (except to the
Company or one or more Restricted Subsidiaries) of any Principal Property owned
or leased by the Company or any Restricted Subsidiary on a date which is more
than 120 days after the later of (a) the date of acquisition of such Principal
Property or (b) the date of completed construction and full operation of such
Principal Property, with the intention of leasing back such Principal Property
(except for a term of no more than 3 years with the intent not to use it
thereafter).
Secured Debt means any Indebtedness which is secured by a Mortgage on (a)
any Principal Property of the Company or a Restricted Subsidiary or on (b) any
shares of capital stock or indebtedness of any Restricted Subsidiary.
Subsidiary means any corporation of which at least a majority of the
outstanding stock having ordinary voting power to elect a majority of directors
(irrespective of whether stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency) is at the time, directly or indirectly, owned or controlled by the
Company or by one or more Subsidiaries thereof, or by the Company and one or
more Subsidiaries.
Unrestricted Subsidiary means (a) any Subsidiary acquired or organized
after March 15, 1987 except for any such Subsidiary which is a successor,
directly or indirectly, to any Restricted Subsidiary, (b) any Subsidiary which
may acquire recreation centers from the Company or any Restricted Subsidiary and
which is principally engaged in the business of owning, leasing, operating or
constructing recreation centers, (c) any Subsidiary the principal business and
assets of which are located outside the United States of America, its
territories and possessions, (d) Centennial Assurance Company Ltd., a Bermuda
corporation, and (e) any Subsidiary substantially all the assets of which
consist of stock or indebtedness of a Subsidiary or Subsidiaries of the
character described in clauses (a), (b) or (c), or identified in clause (d), in
each case unless and until any such Subsidiary shall have been designated to be
a Restricted Subsidiary pursuant to clause (b) of the definition of "Restricted
Subsidiary."
16
<PAGE> 18
U.S. Government Obligations means direct non-callable obligations of, or
non-callable obligations guaranteed by, the United States of America or an
agency thereof for the payment of which guarantee or obligations the full faith
and credit of the United States is pledged.
CONCERNING THE TRUSTEE
The Company has a $400 million revolving credit agreement with seventeen
banks, including Harris Trust and Savings Bank. The Company may from time to
time have other customary banking relationships with Harris Trust and Savings
Bank.
DESCRIPTION OF THE WARRANTS TO PURCHASE
COMMON STOCK OR PREFERRED STOCK
The following statements with respect to the Common Stock Warrants and
Preferred Stock Warrants (collectively, the "Stock Warrants") are summaries of,
and subject to, the detailed provisions of a warrant agreement ("Stock Warrant
Agreement") to be entered into by the Company and a warrant agent to be selected
at the time of issue (the "Stock Warrant Agent"), which Stock Warrant Agreement
may include or incorporate by reference standard warrant provisions
substantially in the form of the Standard Stock Warrant Provisions (the "Stock
Warrant Provisions") filed as an exhibit to the Registration Statement.
GENERAL
The Stock Warrants, evidenced by warrant certificates (the "Stock Warrant
Certificates"), may be issued under the Stock Warrant Agreement independently or
together with any Offered Securities offered by any Prospectus Supplement and
may be attached to or separate from such Offered Securities. If Stock Warrants
are offered, the related Prospectus Supplement will describe the designation and
terms of the Stock Warrants, including without limitation the following: (1) the
offering price, if any; (2) the designation and terms of the Common Stock or
Preferred Stock purchasable upon exercise of the Stock Warrants; (3) if
applicable, the date on and after which the Stock Warrants and the related
Offered Securities will be separately transferable; (4) the number of shares of
Common Stock or Preferred Stock purchasable upon exercise of one Stock Warrant
and the initial price at which such shares may be purchased upon exercise; (5)
the date on which the right to exercise the Stock Warrants shall commence and
the date on which such right shall expire; (6) a discussion of certain federal
income tax considerations; (7) the call provisions, if any; (8) the currency,
currencies or currency units in which the offering price, if any, and exercise
price are payable; (9) the antidilution provisions of the Stock Warrants; and
(10) any other terms of the Stock Warrants. The shares of Common Stock or
Preferred Stock issuable upon exercise of the Stock Warrants will, when issued
in accordance with the Stock Warrant Agreement, be fully paid and nonassessable.
EXERCISE OF STOCK WARRANTS
Stock Warrants may be exercised by surrendering to the Stock Warrant Agent
the Stock Warrant Certificate with the form of election to purchase on the
reverse thereof duly completed and signed by the warrantholder, or its duly
authorized agent (such signature to be guaranteed by a bank or trust company, a
broker or dealer which is a member of the National Association of Securities
Dealers, Inc. or by a national securities exchange), indicating the
warrantholder's election to exercise all or a portion of the Stock Warrants
evidenced by the certificate. Surrendered Stock Warrant Certificates shall be
accompanied by payment of the aggregate exercise price of the Stock Warrants to
be exercised, as set forth in the related Prospectus Supplement, in lawful money
of the United States of America, unless otherwise provided in the related
Prospectus Supplement. Upon receipt thereof by the Stock Warrant Agent, the
Stock Warrant Agent will requisition from the transfer agent for the Common
Stock or the Preferred Stock, as the case may be, for issuance and delivery to
or upon the written order of the exercising warrantholder, a certificate
representing the number of shares of Common Stock or Preferred Stock purchased.
If less than all of the Stock Warrants evidenced by any Stock Warrant
Certificate are exercised, the Stock Warrant Agent shall deliver to the
exercising warrantholder a new Stock Warrant Certificate representing the
unexercised Stock Warrants.
17
<PAGE> 19
ANTIDILUTION AND OTHER PROVISIONS
The exercise price payable and the number of shares of Common Stock or
Preferred Stock purchasable upon the exercise of each Stock Warrant and the
number of Stock Warrants outstanding will be subject to adjustment in certain
events, including the issuance of a stock dividend to holders of Common Stock or
Preferred Stock, respectively, or a combination, subdivision or reclassification
of Common Stock or Preferred Stock, respectively. In lieu of adjusting the
number of shares of Common Stock or Preferred Stock purchasable upon exercise of
each Stock Warrant, the Company may elect to adjust the number of Stock
Warrants. No adjustment in the number of shares purchasable upon exercise of the
Stock Warrants will be required until cumulative adjustments require an
adjustment of at least 1% thereof. The Company may, at its option, reduce the
exercise price at any time. No fractional shares will be issued upon exercise of
Stock Warrants, but the Company will pay the cash value of any fractional shares
otherwise issuable. Notwithstanding the foregoing, in case of any consolidation,
merger, or sale or conveyance of the property of the Company as an entirety or
substantially as an entirety, the holder of each outstanding Stock Warrant shall
have the right to the kind and amount of shares of stock and other securities
and property (including cash) receivable by a holder of the number of shares of
Common Stock or Preferred Stock into which such Stock Warrants were exercisable
immediately prior thereto.
NO RIGHTS AS STOCKHOLDERS
Holders of Stock Warrants will not be entitled, by virtue of being such
holders, to vote, to consent, to receive dividends, to receive notice as
stockholders with respect to any meeting of stockholders for the election of
directors of the Company or any other matter, or to exercise any rights
whatsoever as stockholders of the Company.
DESCRIPTION OF THE WARRANTS TO PURCHASE DEBT SECURITIES
The following statements with respect to the Debt Warrants are summaries
of, and subject to, the detailed provisions of a warrant agreement (the "Debt
Warrant Agreement") to be entered into by the Company and a warrant agent to be
selected at the time of issue (the "Debt Warrant Agent"), which Debt Warrant
Agreement may include or incorporate by reference standard warrant provisions
substantially in the form of the Standard Debt Securities Warrant Provisions
(the "Debt Warrant Provisions") filed as an exhibit to the Registration
Statement.
GENERAL
The Debt Warrants, evidenced by warrant certificates (the "Debt Warrant
Certificates"), may be issued under the Debt Warrant Agreement independently or
together with any Offered Securities offered by any Prospectus Supplement and
may be attached to or separate from such Offered Securities. If Debt Warrants
are offered, the related Prospectus Supplement will describe the designation and
terms of the Debt Warrants, including without limitation the following: (1) the
offering price, if any; (2) the designation, aggregate principal amount and
terms of the Debt Securities purchasable upon exercise of the Debt Warrants; (3)
if applicable, the date on and after which the Debt Warrants and the related
Offered Securities will be separately transferable; (4) the principal amount of
Debt Securities purchasable upon exercise of one Debt Warrant and the price at
which such principal amount of Debt Securities may be purchased upon exercise;
(5) the date on which the right to exercise the Debt Warrants shall commence and
the date on which such right shall expire; (6) a discussion of certain federal
income tax considerations; (7) whether the warrants represented by the Debt
Warrant Certificates will be issued in registered or bearer form; (8) the
currency, currencies or currency units in which the offering price, if any, and
exercise price are payable; (9) the antidilution provisions of the Debt
Warrants; and (10) any other terms of the Debt Warrants.
Warrantholders do not have any of the rights of holders of Debt Securities,
including the right to receive the payment of principal of, or interest on, the
Debt Securities or to enforce any of the covenants of the Debt Securities or the
Indenture except as otherwise provided in the Indenture.
18
<PAGE> 20
EXERCISE OF DEBT WARRANTS
Debt Warrants may be exercised by surrendering the Debt Warrant Certificate
at the warrant agent office of the Debt Warrant Agent, with the form of election
to purchase on the reverse side of the Debt Warrant Certificate properly
completed and executed (with signature(s) guaranteed by a bank or trust company,
a broker or dealer which is a member of the National Association of Securities
Dealers, Inc. or by a national securities exchange), and by payment in full of
the exercise price, as set forth in the Prospectus Supplement. Upon the exercise
of Debt Warrants, the Company will issue the Debt Securities in authorized
denominations in accordance with the instructions of the exercising
warrantholder. If less than all of the Debt Warrants evidenced by the Debt
Warrant Certificate are exercised, a new Debt Warrant Certificate will be issued
for the remaining number of Debt Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities being offered hereby (i)
directly to purchasers, (ii) through agents, (iii) through underwriters or a
group of underwriters or (iv) through a combination of those methods of sale.
The Prospectus Supplement with respect to the Offered Securities describes the
terms of the offering of such Offered Securities and the method of distribution
of such Offered Securities.
Offers to purchase Offered Securities may be solicited directly by the
Company or by agents designated by the Company from time to time. Unless
otherwise indicated in the Prospectus Supplement, any such agent will be acting
on a best efforts basis for the period of its appointment (ordinarily five
business days or less). Agents may be entitled under agreements which may be
entered into with the Company to indemnification by the Company against certain
civil liabilities, including liabilities under the Securities Act.
If an underwriter or underwriters are utilized in the sale, the Company
will enter into an underwriting agreement with such underwriters at the time of
sale to them and the names of the underwriters and the terms of the transaction
will be set forth in the Prospectus Supplement, which will be used by the
underwriters to make resales of the Offered Securities in respect of which this
Prospectus is delivered to the public. The underwriters may be entitled, under
the underwriting agreement, to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act.
All Offered Securities offered other than Common Stock will be new issues
of securities with no established trading market. Any underwriters to whom such
Offered Securities are sold by the Company for public offering and sale may make
a market in such Offered Securities, but such underwriters will not be obligated
to do so and may discontinue any market making at any time without notice. No
assurance can be given as to the liquidity of or the trading markets for any
such Offered Securities.
The agents and underwriters may be deemed to be underwriters and any
discounts, commissions or concessions received by them from the Company or any
profit on the resale of Offered Securities by them may be deemed to be
underwriting discounts and commissions under the Securities Act. Any such person
who may be deemed to be an underwriter and any such compensation received from
the Company will be described in the Prospectus Supplement. Agents and
underwriters may be customers of, engage in transactions with, or perform
services for, the Company in the ordinary course of business.
The place and time of delivery for the Offered Securities in respect of
which this Prospectus is delivered will be set forth in the Prospectus
Supplement.
LEGAL OPINIONS
Certain legal matters in connection with the Offered Securities will be
passed upon for the Company by Mayer, Brown & Platt, 190 South LaSalle Street,
Chicago, Illinois. The legality of the Offered Securities will be passed upon
for any underwriters as set forth in the Prospectus Supplement.
19
<PAGE> 21
EXPERTS
The consolidated financial statements and supplemental schedules included
or incorporated by reference in the Company's Annual Report on Form 10-K for the
year ended December 31, 1995, have been examined by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are incorporated herein in reliance upon the authority of said firm
as experts in giving said reports.
20
<PAGE> 22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with
the issuance and distribution of the securities registered hereby, other than
underwriting discounts and commissions:
<TABLE>
<S> <C>
SEC registration fee.............................................. $172,414
Blue sky fees and expenses........................................ 5,000
Printing and engraving costs...................................... 30,000
Legal fees and expenses........................................... 50,000
Accounting fees and expenses...................................... 100,000
Trustee fees and expenses......................................... 5,000
Rating agency fees................................................ 197,500
Miscellaneous..................................................... 40,086
--------
Total................................................... $600,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
(a) Section 145 of the General Corporation Law of Delaware, under which the
Company is organized, empowers a corporation, subject to certain limitations, to
indemnify its officers, directors, employees and agents, or others acting in
similar capacities for other entities at the request of the Company, against
certain expenses, including attorneys' fees, judgments, fines and other amounts
which may be paid or incurred by them in their capacities as such directors,
officers, employees or agents.
(b) The Certificate of Incorporation of the Company authorizes the Board of
Directors to indemnify directors, officers, employees or agents of the Company
to the full extent permitted by law.
(c) The Company's By-laws authorize the Board of Directors to indemnify
directors, officers, employees and agents in the same circumstances set forth in
the Certificate of Incorporation. The By-laws also authorize the Company to
purchase liability insurance on behalf of directors, officers, employees and
agents and to enter into indemnity agreements with directors, officers,
employees and agents.
(d) The Company has entered into indemnification agreements with its
directors and its officers which provide broader indemnification than the
indemnification specifically available under Section 145 of the Delaware General
Corporation Law. The agreements provide that the Company will indemnify its
directors and its officers to the fullest extent permitted by the Company's
Certificate of Incorporation (and that is otherwise lawful) against expenses
(including attorneys' fees), judgments, fines, taxes, penalties and settlement
payments incurred by reason of the fact that they were directors or officers of
the Company. Unlike Section 145 of the Delaware General Corporation Law, this
indemnification would, to the extent that it is lawful, cover judgments, fines
and amounts paid in settlement of claims against the director or officer by or
in the right of the Company.
(e) The Company is the owner of the insurance policy which covers the
Company for certain losses incurred pursuant to indemnification obligations set
forth above during any policy year, subject to specified exclusions, terms and
conditions. The policy also covers the officers and directors of the Company for
certain of such losses if they are not indemnified by the Company.
(f) The Company is also the owner of an insurance policy which would
reimburse it for certain losses incurred by it pursuant to its fiduciary
obligations under the Employee Retirement Income Security Act of 1974, subject
to specified exclusions, terms and conditions. This policy also covers the
officers, directors and employees of the Company for certain of their losses
incurred as fiduciaries under such Act, subject to specified exclusions, terms
and conditions.
II-1
<PAGE> 23
(g) Under the terms of the Equity Underwriting Agreement and the Debt
Underwriting Agreement filed as exhibits hereto, directors, certain officers and
controlling persons of the Company are entitled to indemnification under certain
circumstances including proceedings under the Securities Act of 1933 and the
Securities Exchange Act of 1934.
ITEM 16. EXHIBITS.
A list of exhibits filed herewith or incorporated by reference is contained
in the Exhibit Index which is incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
The Company 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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That for purposes of determining any liability under the Securities Act
of 1933, each filing of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in this Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company, pursuant to the provisions described in Item 15, or otherwise, the
Company 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 Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense
II-2
<PAGE> 24
of any action, suit or proceeding) is asserted against the Company by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to the 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.
The Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Company pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act of 1933 shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-3
<PAGE> 25
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that is has reasonable grounds to believe that it meets all 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, Lake Forest, Illinois on August 12, 1996.
BRUNSWICK CORPORATION
By /s/ PETER B. HAMILTON
------------------------------------
Senior Vice President and
Chief Financial Officer
Each person whose signature appears below on this Registration Statement
hereby constitutes and appoints Peter B. Hamilton, Robert T. McNaney and Richard
S. O'Brien and each of them, with full power to act without the other, as his or
her true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities (unless revoked in writing), to sign any and all
amendments to the Registrant's Form S-3 Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting to such attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as he or she might and could do
in person, hereby ratifying and confirming all that such attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ------------------------------- ----------------
<S> <C> <C>
/s/ PETER N. LARSON Chairman of the Board and August 12, 1996
- --------------------------------------------- Chief Executive Officer,
Peter N. Larson (Principal Executive Officer),
and Director
/s/ PETER B. HAMILTON Senior Vice President and August 12, 1996
- --------------------------------------------- Chief Financial Officer
Peter B. Hamilton (Principal Financial Officer)
/s/ WILLIAM L. METZGER Director of Accounting August 12, 1996
- --------------------------------------------- (Principal Accounting Officer)
William L. Metzger
/s/ NOLAN D. ARCHIBALD Director August 12, 1996
- ---------------------------------------------
Nolan D. Archibald
/s/ MICHAEL J. CALLAHAN Director August 12, 1996
- ---------------------------------------------
Michael J. Callahan
/s/ JOHN P. DIESEL Director August 12, 1996
- ---------------------------------------------
John P. Diesel
/s/ PETER HARF Director August 12, 1996
- ---------------------------------------------
Peter Harf
</TABLE>
II-4
<PAGE> 26
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ------------------------------- ----------------
<S> <C> <C>
/s/ GEORGE D. KENNEDY Director August 12, 1996
- ---------------------------------------------
George D. Kennedy
/s/ BERND K. KOKEN Director August 12, 1996
- ---------------------------------------------
Bernd K. Koken
/s/ JAY W. LORSCH Director August 12, 1996
- ---------------------------------------------
Jay W. Lorsch
/s/ BETTYE MARTIN MUSHAM Director August 12, 1996
- ---------------------------------------------
Bettye Martin Musham
/s/ JACK F. REICHERT Director August 12, 1996
- ---------------------------------------------
Jack F. Reichert
/s/ KENNETH ROMAN Director August 12, 1996
- ---------------------------------------------
Kenneth Roman
/s/ ROGER W. SCHIPKE Director August 12, 1996
- ---------------------------------------------
Roger W. Schipke
</TABLE>
II-5
<PAGE> 27
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT NO. EXHIBIT PAGE
----------- ----------------------------------------------------------------- ------------
<C> <S> <C>
1.1 Form of Equity Underwriting Agreement............................
1.2 Form of Debt Underwriting Agreement..............................
3.1 Restated Certificate of Incorporation of the Company filed as
Exhibit 19.2 to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1987, and hereby incorporated by
reference.
3.2 Certificate of Designation, Preferences and Rights of Series A
Junior Participating Preferred Stock filed as Exhibit 3.2 to the
Company's Annual Report on Form 10-K for 1995, and hereby
incorporated by reference.
3.3 By-Laws of the Company filed as Exhibit 3.3 to the Company's
Annual Report on Form 10-K for 1995, and hereby incorporated by
reference.
4.1 Indenture dated as of March 15 1987, between the Company and
Continental Illinois National Bank and Trust Company of Chicago
filed as Exhibit 4.1 to the Company's Quarterly Report on Form
10-Q for the quarter ended March 31, 1987, and hereby
incorporated by reference.
4.2 Form of 8 1/8% Notes of the Company Due April 1, 1997, filed as
Exhibit 4.2 to the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1987, and hereby incorporated by
reference.
4.3 Officers' Certificate setting forth terms of the Company's
$125,000,000 principal amount 7 3/8% Debentures due September 1,
2023 filed as Exhibit 4.3 to the Company's Annual Report on Form
10-K for 1993, and hereby incorporated by reference.
4.4 The Company's Agreement to furnish additional debt instruments
upon request by the Securities and Exchange Commission filed as
Exhibit 4.10 to the Company's Annual Report in Form 10-K for
1980, and hereby incorporated by reference.
4.5 Rights Agreement dated as of February 5, 1996, between the
Company and Harris Trust and Savings Bank filed as Exhibit 1 to
the Company's Registration Statement for Preferred Share Purchase
Rights on Form 8-A dated March 13, 1996, and hereby incorporated
by reference.
4.6 Form of Standard Stock Warrant Provisions........................
4.7 Form of Standard Debt Warrant Provisions.........................
4.8 Instrument of Resignation, Appointment and Acceptance dated as of
May 16, 1996, by and among the Company, First Trust of Illinois,
National Association (as the successor to Bank of America
Illinois, formerly known as Continental Illinois National Bank
and Trust Company of Chicago) and Harris Trust and Savings
Bank.............................................................
5.1 Opinion of Mayer, Brown & Platt..................................
12.1 Statement regarding computation of ratios of earnings to fixed
charges..........................................................
23.1 Consent of Arthur Andersen LLP...................................
23.2 Consent of Mayer, Brown & Platt (included in its opinion filed as
Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page of this
Registration Statement).
25.1 Statement of Eligibility of Trustee on Form T-1 for Harris Trust
and Savings Bank.................................................
</TABLE>
<PAGE> 1
Exhibit 1.1
BRUNSWICK CORPORATION
(a Delaware corporation)
(Par Value $.75 Per Share)
FORM OF EQUITY PURCHASE AGREEMENT
________________ __, 199_
To the [Representatives of the Underwriters
named in Schedule A]
Ladies and Gentlemen:
Brunswick Corporation, a Delaware corporation (the "Company"),
confirms its agreement with you and each of the other underwriters named in
Schedule A hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom you are acting as representatives (the "Representatives"),
with respect to the sale by the Company and the purchase by the Underwriters,
acting severally and not jointly, of the respective number of [shares of Common
Stock, par value $.75 per share][shares of Preferred Stock, par value $.75 per
share][depositary shares representing shares of preferred stock, par value $.75
per share], of the Company [("Common Stock")][("Preferred Stock")][the
"Depositary Shares")] set forth in said Schedule A, and with respect to the
grant by the Company to the Underwriters, acting severally and not jointly, of
the option described in Section 2(b) hereof to purchase all or any part of
________ additional [shares of Common Stock][shares of Preferred
Stock][Depositary Shares] to cover over-allotments, in each case except as may
otherwise be provided in the Price Determination Agreement, as hereinafter
defined. The aforesaid _____________ [shares of Common Stock][shares of
Preferred Stock][Depositary Shares] set forth on Schedule A hereto (the
"Initial Shares") to be purchased by the Underwriters and all or any part of
the ________ [shares of Common Stock][shares of Preferred Stock][Depositary
Shares] subject to the option described in Section 2(b) hereof (the "Option
Shares") are collectively hereinafter called the "Shares."
<PAGE> 2
You have advised us that you and the other Underwriters, acting
severally and not jointly, desire to purchase the Initial Shares and, if the
Underwriters so elect, the Option Shares and that you have been authorized by
the other Underwriters to execute this Agreement and the Price Determination
Agreement referred to below on their behalf.
The initial public offering price per share for the Shares and the
purchase price per share for the Shares to be paid by the several Underwriters
shall be agreed upon by the Company and the Representatives, acting on behalf
of the several Underwriters, and such agreement shall be set forth in a
separate written instrument substantially in the form of Exhibit A hereto (the
"Price Determination Agreement"). The Price Determination Agreement may take
the form of an exchange of any standard form of written telecommunication
between the Company and the Representatives and shall specify such applicable
information as is indicated in Exhibit A hereto. The offering of the Shares
will be governed by this Agreement, as supplemented by the Price Determination
Agreement. From and after the date of the execution and delivery of the Price
Determination Agreement, this Agreement shall be deemed to incorporate, and all
references herein to "the Agreement" shall be deemed to include, the Price
Determination Agreement.
[If the Prospectus (as defined below) so provides, the Preferred Stock
will be deposited by the Company against delivery of receipts (the "Depositary
Receipts") to be issued by a depositary to be named by the Company (the
"Depositary") under a deposit agreement, dated as of a date specified in the
Prospectus (the "Deposit Agreement"), between the Company, the Depositary and
the holders from time to time of the Depositary Receipts issued thereunder and
evidencing Shares. Each Share will represent the number of deposited shares of
Preferred Stock specified in the Prospectus.]
[The terms and rights of any particular issuance of [Preferred Stock]
[Depositary Shares] shall be as specified in or pursuant to a resolution or
resolutions of the Board of Directors of the Company or a duly authorized
committee thereof and set forth in a certificate of designations (the
"Certificate of Designations") to be filed with the Secretary of State of the
State of Delaware pursuant to Section 151 of the General Corporation Law of the
State of Delaware (the "General Corporation Law)".]
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333- ________),
including a basic prospectus, relating to certain of its securities, including
the Shares, and the offering thereof from time to time, in accordance with Rule
415 under the
2
<PAGE> 3
Securities Act of 1933, as amended (the "1933 Act"), and has filed such
amendments thereto as may have been required to the date hereof. Such
registration statement, as amended, has been declared effective by the
Commission. As provided in Section 3(a), a prospectus supplement reflecting
the terms of the Shares, the terms of the offering thereof and the other
matters set forth therein has been prepared and will be filed pursuant to Rule
424 under the 1933 Act. Such prospectus supplement, in the form first filed on
or after the date hereof pursuant to Rule 424, is herein referred to as the
"Prospectus Supplement." Such registration statement, as amended at the date
hereof, including the exhibits thereto and the documents incorporated by
reference therein, is herein called the "Registration Statement," and the basic
prospectus included therein relating to all offerings of securities under the
Registration Statement, as supplemented by the Prospectus Supplement, is herein
called the "Prospectus," except that, if such basic prospectus is amended or
supplemented on or prior to the date on which the Prospectus Supplement is
first filed pursuant to Rule 424, the term "Prospectus" shall refer to the
basic prospectus as so amended or supplemented and as supplemented by the
Prospectus Supplement, in either case including the documents filed by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), that are incorporated by reference therein. All
references in this Agreement to financial statements and schedules and other
information which is "contained," "included" or "stated" in the Registration
Statement or the Prospectus (and all other references of like import) shall be
deemed to mean and include all such financial statements and schedules and
other information which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the Registration
Statement or the Prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each Underwriter as of
the date hereof and as of the date of the Price Determination Agreement (such
latter date being hereinafter referred to as the "Representation Date") as
follows:
(i) At the time the Registration Statement became effective
(the "Effective Time") and at the date hereof the Registration
Statement and the Prospectus complied in all material respects with
the requirements of the 1933 Act and the rules and regulations of the
Commission thereunder (the "1933 Act Regulations"); at the Effective
Time and at the
3
<PAGE> 4
date hereof, the Registration Statement did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and the Prospectus, at the Effective Time, at the date
hereof and at the Closing Time, did not or will not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification of the
Trustee on Form T-1 under the 1939 Act ("Form T- 1") or to statements
in or omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by the trustee or any Underwriter through the
Representatives expressly for use in the Registration Statement or
Prospectus or any amendment or supplement thereto.
(ii) The accountants who certified the financial
statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(iii) The financial statements included in the Registration
Statement and the Prospectus present fairly the financial position of
the Company and its consolidated subsidiaries as of the dates
indicated and the results of their operations for the periods
specified; except as otherwise stated in the Registration Statement,
said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis; and the supporting schedules included in the Registration
Statement present fairly the information required to be stated
therein.
(iv) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise, and (C) except for regular quarterly dividends on the
Company's
4
<PAGE> 5
Common Stock in amounts per share that are consistent with past
practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(v) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement and the Price Determination Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify would
not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise.
(vi) Each subsidiary of the Company which is a significant
subsidiary (a "Subsidiary") as defined in Rule 405 of the 1933 Act
Regulations has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company and its subsidiaries considered
as one enterprise; all of the issued and outstanding capital stock of
each such Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(vii) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus under "Description of
Capital Stock--General" (except for subsequent issuances, if any,
pursuant to this Agreement or pursuant to employee benefit plans as
described in the Prospectus); the shares of issued and outstanding
Common
5
<PAGE> 6
Stock have been duly authorized and validly issued and are fully paid
and non-assessable; the Shares have been duly authorized for issuance
and sale pursuant to this Agreement and, when issued and delivered by
the Company pursuant to this Agreement [and when the Certificate of
Designations is duly executed, filed, recorded and is in effect under
the General Corporation Law,] against payment of the consideration set
forth in the Price Determination Agreement, will be validly issued and
fully paid and non-assessable; the capital stock of the Company
conforms to all statements relating thereto contained in the
Prospectus; and the issuance of the Shares is not subject to
preemptive or other similar rights. [The Shares have been duly
authorized and, when issued and delivered in accordance with the terms
of this Agreement and when the Certificate of Designations is duly
executed, filed, recorded and is in effect under the General
Corporation Law, the Preferred Stock to be issued in connection with
the Shares shall be validly issued, fully paid and non- assessable and
the issuance of such Preferred Stock will not be subject to any
preemptive or similar rights.]
[(__) Assuming due issuance by the Depositary of Depositary
Receipts evidencing the Preferred Stock to be delivered by the Company
against the deposit of Preferred Stock in respect thereof in
accordance with the provisions of the Deposit Agreement, such
Depositary Receipts are duly and validly issued and the persons in
whose names such Depositary Receipts are registered shall be entitled
to the rights specified therein and in the Deposit Agreement.]
(viii) Neither the Company nor any of the Subsidiaries is in
violation of its charter or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage loan
agreement, note, lease or other instrument to which the Company or any
of the Subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any
of the Subsidiaries is subject; and the execution, delivery and
performance of this Agreement [, the Deposit Agreement] and the Price
Determination Agreement and the consummation of the transactions
contemplated herein and therein and compliance by the Company with its
obligations hereunder and thereunder have been duly authorized by all
necessary corporate action and will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any of the Subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which the
6
<PAGE> 7
Company or any of the Subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Company or any of the Subsidiaries is subject, nor will such action
result in any violation of the provisions of the charter or by- laws
of the Company or any of the Subsidiaries under any applicable law,
administrative regulation or administrative or court decree.
(ix) Other than as disclosed in the Registration Statement,
there is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any of its subsidiaries, which is required to be disclosed
in the Registration Statement, or which might result in any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, or which might
materially and adversely affect the properties or assets thereof or
which might materially and adversely affect the consummation of this
Agreement [or the Deposit Agreement]; all pending legal or
governmental proceedings to which the Company or any subsidiary is a
party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material; and there are no contracts
or documents of the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Act Regulations which have not been so filed.
(x) The Company and the Subsidiaries own or possess, or can
acquire on reasonable terms, the patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and
trade names (collectively, "patent and proprietary rights") presently
employed by them in connection with the business now operated by them,
and neither the Company nor any of the Subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any patent or proprietary
rights, or of any facts which would render any patent and proprietary
rights invalid or inadequate to protect the interest of the Company or
any of the Subsidiaries therein, and which infringement or conflict
(if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in
any material
7
<PAGE> 8
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(xi) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
offering, issuance or sale of the Shares hereunder, except such as may
be required under the 1933 Act, the 1933 Act Regulations or state
securities laws.
(xii) The Company and the Subsidiaries possess such
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
the business now operated by them, and neither the Company nor any of
the Subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such certificate, authority or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and
adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(xiii) This Agreement has been, and, at the Representation
Date, the Price Determination Agreement [and the Deposit Agreement]
will have been, duly executed and delivered by the Company.
(xiv) There are no persons with registration or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act.
(xv) The Company and the Subsidiaries have good and
sufficient title to all property described or referred to in the
Registration Statement as being owned by them, in each case free and
clear of all liens, claims, security interests or other encumbrances,
with such exceptions as are described or referred to in the
Registration Statement or as are not material to the condition,
financial or otherwise, or to the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise.
(xvi) The documents incorporated or deemed to be incorporated
by reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission under the 1934 Act (the "1934 Act
Regula-
8
<PAGE> 9
tions"), and, when read together with the other information in the
Prospectus, at the time the Registration Statement and any amendments
thereto become effective and at the Closing Time, will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(b) Any certificate signed by any officer of the Company and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to each Underwriter as to
the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price per share set forth in the Price Determination Agreement, the number
of Initial Shares set forth in Schedule A opposite the name of such Underwriter
(except as otherwise provided in the Price Determination Agreement), plus any
additional number of Initial Shares which such Underwriter may become obligated
to purchase pursuant to the provisions of Section 10 hereof.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company hereby grants an option to the Underwriters, severally and
not jointly, to purchase up to an additional _________ [shares of Common Stock]
[shares of Preferred Stock) [Depositary Shares] at the price per share set
forth in the Price Determination Agreement. The option hereby granted will
expire 30 days after the Representation Date and may be exercised in whole or
in part from time to time only for the purpose of covering overallotments which
may be made in connection with the offering and distribution of the Initial
Shares upon notice by the Representatives to the Company setting forth the
number of Option Shares as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such
Option Shares. Any such time and date of delivery (a "Date of Delivery") shall
be determined by the Representatives, but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to the
Closing Time, as hereinafter defined, unless otherwise agreed by the
Representatives and the Company. If the option is exercised as to all or any
portion of the Option Shares, each of the Underwriters, acting severally and
not jointly, will purchase that proportion of the total number of
9
<PAGE> 10
Option Shares then being purchased which the number of Initial Shares set forth
in Schedule A opposite the name of such Underwriter bears to the total number
of Initial Shares (except as otherwise provided in the Price Determination
Agreement), subject in each case to such adjustments as the Representatives in
their discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment of the purchase price for, and delivery of
certificates for, the Initial Shares shall be made at the office of Mayer,
Brown & Platt, 190 South LaSalle Street, Chicago, Illinois 60603, or at such
other place as shall be agreed upon by the Representatives and the Company, at
10:00 A.M. (Chicago time) on the third business day (unless postponed in
accordance with the provisions of Section 10) after execution of the Price
Determination Agreement unless the Price Determination Agreement is executed
after 4:30 p.m., in which case on the fourth business day thereafter, or such
other time not later than ten business days after such date as shall be agreed
upon by the Representatives and the Company (such time and date of payment and
delivery being herein called "Closing Time"). In addition, in the event that
any or all of the Option Shares are purchased by the Underwriters, payment of
the purchase price for, and delivery of certificates for, such Option Shares
shall be made at the above-mentioned offices of Mayer, Brown & Platt, or at
such other place as shall be agreed upon by the Representatives and the
Company, on each Date of Delivery as specified in the notice from the
Representatives to the Company. Payment shall be made to the Company by wire
transfer of immediately available funds to an account designated by the
Company, against delivery to the [Representatives] [the Depositary] for the
respective accounts of the Underwriters of certificates for the Shares to be
purchased by them. Certificates for the Initial Shares and the Option Shares,
if any, shall be in such denominations and registered in such names as the
Representatives may request in writing at least two business days before the
Closing Time or the relevant Date of Delivery, as the case may be. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial Shares and the Option Shares, if any, which it has
agreed to purchase [(it being understood that any Preferred Stock to be issued
in connection with any Shares shall be transferred and delivered by or on
behalf of the Company to the Depositary for deposit pursuant to the Deposit
Agreement against issuance to the Representatives for the respective accounts
of the several Underwriters of one or more Depositary Receipts evidencing the
Shares to be purchased by each Underwriter)]. You, individually and not as
Representatives of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Initial Shares or the Option Shares, if
any, to be purchased by any Underwriter whose
10
<PAGE> 11
money has not been received by the Closing Time or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such
Underwriter from its obligations hereunder. The certificates for the Initial
Shares and the Option Shares, if any, will be made available for examination
and packaging by the Representatives not later than 10:00 A.M. on the last
business day prior to the Closing Time or the relevant Date of Delivery, as the
case may be. [Depositary Receipts evidencing any Shares to be purchased
hereunder, in definitive form and registered in such names as provided above,
shall be made available for checking and packaging at least 48 hours prior to
the Closing Date or any Date of Delivery, as the case may be, at the offices of
the Depositary. Such Depositary Receipts shall be available for the release at
the Closing Date or such Date of Delivery, as the case may be, at such office.]
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) In connection with the offering of the Shares, the Company
will prepare a Prospectus Supplement setting forth the number of Shares covered
thereby and their terms and rights of the particular issuance, the names of the
Underwriters and the number of the Shares which each severally has agreed to
purchase, the name of the Representatives, the price at which the Shares are to
be purchased by the Underwriters from the Company, the initial public offering
price, the selling concession and reallowance, if any, and such other
information as the Representatives and the Company deem appropriate in
connection with the offering of the Shares. The Company will promptly transmit
copies of the Prospectus Supplement to the Commission for filing pursuant to
Rule 424 of the 1933 Act Regulations and will furnish to the Underwriters named
therein as many copies of any preliminary prospectus supplement and the
Prospectus as the Representatives shall reasonably request.
(b) The Company will notify the Representatives promptly, and
confirm the notice in writing, (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the Commission
for filing of any supplement to the Prospectus or any document to be filed
pursuant to the 1934 Act which will be incorporated by reference into the
Prospectus or the Registration Statement, (iii) of the receipt of any comments
from the Commission, (iv) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or any
order preventing or suspending the use of any Prospectus or the initiation of
any proceedings for any such purpose, and (vi) of the suspension of the
qualification of the
11
<PAGE> 12
Shares for offering or sale in any jurisdiction, or the initiation or
threatening of any proceedings for such purpose of which the Company becomes
aware. The Company will use all reasonable efforts to prevent the issuance of
any stop order or any order preventing or suspending the use of any Prospectus
or suspending such qualification, and, in the event of the issuance of a stop
order or any order preventing or suspending the use of any Prospectus or
suspending such qualifications, to use all reasonable efforts to promptly
obtain the lifting thereof.
(c) The Company will give the Representatives notice of its
intention to file or prepare any amendment to the Registration Statement
(including any post-effective amendment) or any amendment or supplement to the
Prospectus, whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b), whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish the Representatives with copies of any such amendment
or supplement a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file any such amendment or supplement or use
any such prospectus to which the Representatives or counsel for the
Underwriters shall reasonably object.
(d) The Company will deliver to the Representatives _________(___)
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) as the Representatives may reasonably request and will also
deliver to the Representatives a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each
of the Underwriters.
(e) The Company will furnish to each. Underwriter, from time to
time during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act or the respective
applicable rules and regulations of the Commission thereunder.
(f) If any event shall occur as a result of which it is necessary
to amend or supplement the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, the Company will forthwith amend or supplement the
Prospectus (in form and substance reasonably satisfactory to counsel for the
Underwriters) so that, as so amended or supplemented, the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances
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<PAGE> 13
existing at the time it is delivered to a purchaser, not misleading, and the
Company will furnish to the Underwriters a reasonable number of copies of such
amendment or supplement.
(g) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Shares for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Representatives may designate; provided, however, that the Company shall
not be obligated to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or to file a general consent to service of process
in any jurisdiction. In each jurisdiction in which the Shares have been so
qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the Registration
Statement.
(h) The Company will make generally available to its security
holders as soon as practicable, but not later than 50 days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 of the 1933 Act Regulations) covering a twelve month
period beginning not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in said Rule 158) of the
Registration Statement.
(i) The Company will use the net proceeds received by it from the
sale of the Shares in the manner specified in the Prospectus under "Use of
Proceeds".
(j) The Company will effect the listing of the Shares on the New
York, Chicago, and Pacific Stock Exchanges and on such foreign exchanges where
such listing is required by the rules thereof.
(k) During a period of 90 days from the date of the Price
Determination Agreement, the Company will not, without the Representatives'
prior written consent, directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, any Shares or any security
convertible into Shares (except for Shares issued pursuant to this Agreement or
pursuant to employee benefit plans).
(l) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to Section 13, 14 or 15 of
the 1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
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<PAGE> 14
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the typing, printing and distribution of
this Agreement and the Price Determination Agreement, (iii) the preparation,
issuance and delivery of the certificates for the Shares to the Underwriters,
including stock transfer taxes, if any, payable upon the sale, issuance and
delivery to the Underwriters of the Shares, (iv) the fees and disbursements of
the Company's counsel and accountants, (v) the qualification of the Shares
under securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
the Blue Sky Survey, (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, and of the Prospectus and any amendments or supplements thereto, (vii)
the printing and delivery to the Underwriters of copies of the Blue Sky Survey,
(viii) the fees, if any, of the National Association of Securities Dealers,
Inc., and (ix) the fees and expenses incurred in connection with the listing of
the Shares on the exchanges referred to in Section 3(j) hereof.
If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations
of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company herein contained, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
(a) At the Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission and
any request on the part of the Commission for additional information shall have
been complied with to the satisfaction of counsel for the Underwriters.
(b) At Closing Time, the Representatives shall have received:
(1) The favorable opinion, dated as of Closing Time, of Mayer,
Brown & Platt, counsel to the Company, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
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<PAGE> 15
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware.
(ii) The authorized capital stock of the Company is
as set forth in the Prospectus under "Description of Capital
Stock--General".
(iii) [The Shares have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and,
when issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth in the Price
Determination Agreement, will be validly issued and fully paid and
non-assessable.] [The Shares have been duly authorized for issuance
and sale to the Underwriters pursuant to this Agreement and the
Deposit Agreement, and when issued and delivered by the Company
pursuant to this Agreement and the Deposit Agreement against payment
of the consideration set forth in the Price Determination Agreement,
the Preferred Stock to be issued in connection with the Shares will be
validly issued and fully paid and nonassessable.]
(iv) The issuance of the Shares is not subject to
preemptive or other similar rights arising by operation of law, under
the Certificate of Incorporation or By-laws of the Company or, to the
best of their knowledge and information, otherwise.
(v) This Agreement [, the Deposit Agreement] and
the Price Determination Agreement have each been duly authorized,
executed and delivered by the Company.
[(__) Assuming due issuance by the Depositary of
Depositary Receipts evidencing the Preferred Stock to be delivered by
the Company against the deposit of Preferred Stock in respect thereof
in accordance with the provisions of the Deposit Agreement, such
Depositary Receipts are duly and validly issued and the persons in
whose names such Depositary Receipts are registered shall be entitled
to the rights specified therein and in the Deposit Agreement.]
(vi) The Registration Statement is effective under
the 1933 Act and, to the best of their knowledge and information, no
stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act or proceeding therefor initiated or
threatened by the Commission.
(vii) At the time the Registration Statement became
effective and at the Representation Date, the
15
<PAGE> 16
Registration Statement (other than the financial statements and
supporting schedules and other financial or statistical data included
therein, as to which no opinion need be rendered) complied as to form
in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations.
(viii) The [Common Stock] [Preferred Stock]
[Depositary Shares] conforms to the description thereof contained in
the Prospectus and the form of certificate used to evidence the
[Common Stock] [Preferred Stock] [Depositary Shares] is in due and
proper form.
(ix) The information in the Prospectus under
"Description of Capital Stock", to the extent that it constitutes
matters of law, summaries of legal matters, documents or proceedings,
or legal conclusions, has been reviewed by them and is correct in all
material respects.
(x) To the best of their knowledge and information,
there are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in
the Registration Statement or to be filed as exhibits thereto other
than those described or referred to therein or filed or incorporated
by reference as exhibits thereto.
(xi) No authorization, approval, consent or order of
any court or governmental authority or agency is required in
connection with the offering, issuance or sale of the Shares to the
Underwriters, except such as may be required under the 1933 Act, the
1933 Act Regulations or state securities law; and, to the best of
their knowledge and information, the execution, delivery and
performance of this Agreement [, the Depositary Agreement] and the
Price Determination Agreement and the consummation of the transactions
contemplated herein and therein and compliance by the Company with its
obligations hereunder and thereunder will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of the Subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of the Subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of the Subsidiaries is
subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company, or any applicable law, administrative regulation or
administrative or court decree.
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<PAGE> 17
(xii) Each document filed pursuant to the 1934 Act
(other than the financial statements and supporting schedules and
other financial or statistical data included therein, as to which no
opinion need be rendered) and incorporated or deemed to be
incorporated by reference in the Prospectus complied when so filed as
to form in all material respects with the 1934 Act and the 1934 Act
Regulations.
(2) The favorable opinion, dated as of Closing Time, of
Robert T. McNaney, General Counsel to the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) To the best of his knowledge and information,
the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify
would not have a material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise.
(ii) Each Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and, to the best
of his knowledge and information, is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction to which such qualification is required, except where the
failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company and its subsidiaries considered
as one enterprise; all of the issued and outstanding capital stock of
each Subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and, to the best of his knowledge and
information, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(iii) Other than as disclosed in the Registration
Statement, to the best of his knowledge and information, there are no
legal or governmental proceedings pending or threatened which are
required to be disclosed in the Registration Statement, and all
pending legal or governmental proceedings to which the Company or any
subsidiary is a party or to which any of their property is
17
<PAGE> 18
subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material.
(iv) To the best of his knowledge and information,
there are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in
the Registration Statement or to be filed as exhibits thereto other
than those described or referred to therein or filed or incorporated
by reference as exhibits thereto, the descriptions thereof or
references thereto are correct, and no default exists in the due
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument so described, referred
to, filed or incorporated by reference.
(v) The Company has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Registration Statement and to enter into and perform
its obligations under this Agreement [, the Deposit Agreement] and the
Price Determination Agreement.
(vi) The authorized capital stock of the Company is
as set forth in the Prospectus under "Description of Capital Stock --
General". The shares of issued and outstanding Common Stock have been
duly authorized and validly issued and are fully paid and
non-assessable.
(vii) To the best of his knowledge and information,
there are no persons with registration or other similar rights to have
any securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act.
(3) The favorable opinion, dated as of Closing Time, of
________________, counsel for the Underwriters, with respect to the matters set
forth in (i), (iii), (iv) (solely as to preemptive rights arising under the
Certificate of Incorporation or By-laws of the Company) and (v) to (viii),
inclusive of subsection (b)(1) of this Section.
(4) In giving their opinions required by subsections
(b)(1), (b)(2) and (b)(3), respectively, of this Section, Mayer, Brown & Platt,
Mr. McNaney and _______________________ shall each additionally state that
nothing has come to their attention that has caused them to believe that the
Registration Statement (except for financial statements and schedules and other
finan-
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<PAGE> 19
cial or statistical data included or incorporated by reference therein, as to
which counsel need make no statement), at the time it became effective or at
the Representation Date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus (except for
financial statements and schedules and other financial or statistical data
included or incorporated by reference therein, as to which counsel need make no
statement), at the Representation Date or at Closing Time, included an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) At Closing Time there shall not have been, since the
date hereof or since the respective dates as of which information is given in
the Registration Statement and the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of Closing Time, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties in
Section 1 hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or threatened by the Commission.
(d) At the time of the execution of this Agreement, the
Representatives shall have received from Arthur Andersen LLP a letter dated
such date, in form and substance satisfactory to the Representatives, to the
effect that (i) they are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the 1933
Act Regulations; (ii) it is their opinion that the financial statements and
supporting schedules included or incorporated by reference into the
Registration Statement and Prospectus and covered by their opinions therein
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations and the 1934 Act and
1934 Act Regulations; (iii) based upon limited procedures set forth in detail
in such letter, nothing has come to their attention which causes them to
believe that (A) any unaudited financial statements and supporting schedules of
the Company and
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<PAGE> 20
its subsidiaries included in or incorporated by reference into the Registration
Statement and Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations and the 1934 Act and 1934 Act Regulations or are not presented in
conformity with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements included
in or incorporated by reference into the Registration Statement and Prospectus,
or (B) at a specified date not more than five days prior to the date of the
letter, there has been any change in the capital stock of the Company or any
increase in the consolidated long term debt of the Company and its subsidiaries
or any decrease in consolidated net current assets or net assets as compared
with the amounts shown in the most recent financial statements included in or
incorporated by reference into the Registration Statement or, during the period
from the most recent financial statements included in or incorporated by
reference into the Registration Statement to a specified date not more than
five days prior to the date of the letter, there were any decreases, as
compared with the corresponding period in the preceding year, in consolidated
revenues, net income or net income per share of the Company and its
subsidiaries, except in all instances for changes, increases or decreases which
the Registration Statement and the Prospectus disclose have occurred or may
occur; and (iv) in addition to the examination referred to in their opinions
and the limited procedures referred to in clause (iii) above, they have carried
out certain specified procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which are included in or
incorporated by reference into the Registration Statement and Prospectus and
which are specified by the Representatives, and have found such amounts,
percentages and financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its subsidiaries
identified in such letter.
(e) At Closing Time the Representatives shall have
received from Arthur Andersen LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (d) of this Section, except that the specified date referred to
shall be a date not more than five days prior to Closing Time.
(f) At the Closing Time, the Shares shall have been
approved for listing on the exchanges referred to in Section 3(j) hereof.
(g) At Closing Time and at each Date of Delivery, if any,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Shares
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<PAGE> 21
herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Shares as herein contemplated
shall be satisfactory in form and substance to the Representatives and counsel
for the Underwriters.
(h) In the event that the Underwriters exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the Option
Shares, the representations and warranties of the Company contained herein and
the statements in any certificates furnished by the Company hereunder shall be
true and correct as of each Date of Delivery and, at the relevant Date of
Delivery, the Representatives shall have received:
(1) A certificate, dated such Date of Delivery,
of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company confirming that
the certificate delivered at the Closing Time pursuant to Section 5(c)
hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinions of Mayer, Brown &
Platt, counsel for the Company, and Robert T. McNaney, General Counsel
of the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Shares to be purchased on such Date of Delivery and otherwise to the
same effect as the opinions required by Sections 5(b)(1), 5(b)(2) and
5(b)(4) hereof.
(3) The favorable opinion of ____________,
counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Shares to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Sections
5(b)(3) and 5(b)(4) hereof.
(4) A letter from Arthur Andersen LLP, in form
and substance satisfactory to the Representatives and dated such Date
of Delivery, substantially the same in form and substance as the
letter furnished to the Representatives pursuant to Section 5(e)
hereof, except that the "specified date" in the letter furnished
pursuant to their Section 5(h)(4) shall be a date not more than five
days prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representatives by notice to the Company at any time at or
prior to Closing Time, and such
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<PAGE> 22
termination shall be without liability of any party to any other party except
as provided in Section 4 hereof. Notwithstanding any such termination, the
provisions of Sections 6, 7, and 8 hereof shall remain in effect.
SECTION 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 6(c) hereof, the fees and
disbursements of counsel chosen by you to represent the Underwriters),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense (x) to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with
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<PAGE> 23
written information furnished to the Company by any Underwriter through you
expressly for use in the Registration Statement (or any amendment thereto) or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or (y) if such untrue statement or omission or alleged untrue
statement or omission was contained or made in any preliminary prospectus and
corrected in a Prospectus and (i) any such loss, liability, claim, damage or
expense suffered or incurred by any Underwriter (or any person who controls any
Underwriter) resulted from an action, claim or suit by any person who purchased
the Shares which are the subject thereof from such Underwriter in the offering
and (ii) such Underwriter failed to deliver or provide a copy of the Prospectus
to such person at or prior to the confirmation of the sale of such Shares in
any case where such delivery is required by the 1933 Act or the 1933 Act
Regulations.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of any such action. In no event shall the indemnifying parties
be liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Underwriters
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<PAGE> 24
shall contribute to the aggregate losses, liability, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Company and one or more of the Underwriters, as incurred, in such proportions
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus bears to the initial public offering price appearing thereon and the
Company is responsible for the balance; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement and the Price Determination Agreement, or contained in certificates
of officers of the Company submitted pursuant hereto, shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of the Shares to the Underwriters.
SECTION 9. Termination of Agreement.
(a) The Representatives may terminate this Agreement, by notice to
the Company, at any time at or prior to Closing Time (i) if there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or elsewhere or any outbreak of hostilities or escalation
thereof or other calamity or crisis the effect of which is such as to make it,
in the judgment of the Representatives, impracticable to market the Shares or
to enforce contracts for the sale of the Shares, or (iii) if trading in the
Common Stock has been suspended by the Commission, or if trading generally on
either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by
24
<PAGE> 25
either of said Exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by either
Federal or New York authorities.
(b) If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof. Notwithstanding any such
termination, the provisions of Section 6, 7 and 8 hereof shall remain in
effect.
SECTION 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at Closing Time to purchase the Initial
Shares which it or they are obligated to purchase under this Agreement and the
Price Determination Agreement (the "Defaulted Securities"), the Representatives
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth; if, however,
the Representatives shall not have completed such arrangements within such
24-hour period, then:
(a) if the number of Defaulted Securities does not exceed
10% of the number of Initial Shares, the non-defaulting Underwriters shall be
obligated to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of
the number of Initial Shares, this Agreement shall terminate without liability
on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Company shall
have the right to postpone Closing Time for a period not exceeding seven days
in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Underwriters shall be directed to the Representatives c/o _______, ______,
______, attention of _________; notices to the Company shall be directed to
25
<PAGE> 26
it at 1 N. Field Ct., Lake Forest, Illinois 60045-4811, attention of Robert T.
McNaney, General Counsel.
SECTION 12. Parties. This Agreement and the Price
Determination Agreement shall each inure to the benefit of and be binding upon
the Underwriters and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement or the Price Determination Agreement
is intended or shall be construed to give any person, firm or corporation,
other than the Underwriters and the Company and their respective successors and
the controlling persons and officers and directors referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or the Price
Determination Agreement or any provision herein or therein contained. This
Agreement and the Price Determination Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the Underwriters and the Company and their respective successors,
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of any Shares from any Underwriter shall be deemed
to be a successor by reason merely of such purchase.
SECTION 13. Governing Law and Time. This Agreement and the
Price Determination Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made and to be
performed in said State. Except as otherwise set forth herein, specified times
of day refer to New York City time.
26
<PAGE> 27
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
BRUNSWICK CORPORATION
By:
------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
By
-----------------------------------------
Name:
Title:
For themselves and as Representatives of the
other Underwriters named in Schedule A
attached to the Purchase Agreement.
27
<PAGE> 28
SCHEDULE A
<TABLE>
<CAPTION>
Number
Name of Underwriter of Securities
------------------- -------------
<S> <C>
________________
Total . . . . . . . . . . . . . . . . . . . . . . . . SHARES
================
</TABLE>
28
<PAGE> 29
Exhibit A
BRUNSWICK CORPORATION
(a Delaware corporation)
[EQUITY]
PRICE DETERMINATION AGREEMENT
____________, 199_
- -------------------------------
- -------------------------------
As Representatives of the several Underwriters
Ladies and Gentlemen:
Reference is made to the Purchase Agreement, dated ______,
199___ (the "Purchase Agreement"), between Brunswick Corporation, a Delaware
corporation (the "Company"), and the several Underwriters named in Schedule A
thereto or hereto (the "Underwriters"), for whom _____ _________ and
_______________ are acting as representatives (the "Representatives"). The
Purchase Agreement provides for the purchase by the Underwriters from the
Company, subject to the terms and conditions set forth therein, of an aggregate
of ___________ shares (the "Initial Shares") of [the Company's common stock,
par value $.75 per share,] [the Company's preferred stock, par value $.75 per
share,] [certain depositary shares representing shares of its preferred stock,
par value $.75 per share, of the Company]. This Agreement is the Price
Determination Agreement referred to in the Purchase Agreement.
Pursuant to Section 2 of the Purchase Agreement, the undersigned agree
with the Representatives [as set forth in Schedule I hereto] [as follows:
1. The initial public offering price per share
<PAGE> 30
for the Initial Shares shall be $________.
2. The purchase price per share for the Initial Shares
to be paid by the several Underwriters shall be $________ representing an
amount equal to the initial public offering price set forth above, less $____
per share.]
The Company represents and warrants to each of the
Underwriters that the representations and warranties of the Company set forth
in Section l(a) of the Purchase Agreement are accurate as though expressly made
at and as of the date hereof.
As contemplated by Section 2 of the Purchase Agreement,
attached as Schedule A is a completed list of the several Underwriters, which
shall be a part of this Agreement and the Purchase Agreement.
This Agreement shall be governed by the law of the State of
New York.
<PAGE> 31
If the foregoing is in accordance with your understanding of
the agreement between the Underwriters and the Company, please sign and return
to the Company a counterpart hereof, whereupon this instrument along with all
counterparts and together with the Purchase Agreement shall be a binding
agreement between the Underwriters and the Company in accordance with its terms
and the terms of the Purchase Agreement.
Very truly yours,
BRUNSWICK CORPORATION
By: _______________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
By:________________________
Name:
Title:
For themselves and as Representatives of the
other Underwriters named in Schedule A
attached to the Purchase Agreement.
<PAGE> 32
SCHEDULE I
TITLE OF DESIGNATED PREFERRED STOCK (DEPOSITARY SHARES):
STATED VALUE PER SHARE:
NUMBER OF SHARES OF DESIGNATED PREFERRED STOCK (DEPOSITARY SHARES):
NUMBER OF SHARES OF FIRM PREFERRED STOCK (DEPOSITARY SHARES):
MAXIMUM NUMBER OF OPTIONAL PREFERRED SHARES (DEPOSITARY SHARES):
[NUMBER OF SHARES OF DESIGNATED PREFERRED STOCK REPRESENTED BY EACH DESIGNATED
DEPOSITARY SHARE:]
LIQUIDATION VALUE:
INITIAL OFFERING PRICE TO PUBLIC:
[$ per (Depositary) Share][Formula]
PURCHASE PRICE BY UNDERWRITERS:
[$ per (Depositary) Share][Formula]
COMMISSION PAYABLE TO UNDERWRITERS:
[$ per (Depositary) Share]
DIVIDEND RATE:
[Formula]
DIVIDEND PAYMENT DATES:
[months and dates]
VOTING RIGHTS:
REDEMPTION PROVISIONS:
[No provisions for redemption.]
[The Designated Preferred Stock (Depositary Shares) may be redeemed in
whole or in part at the option of the Company, on or after ,
at the following redemption prices:
<PAGE> 33
Year Price
Redemption
and thereafter at $ per share, together in each case with
dividends for the then-current dividend period.]
[on any dividend payment date falling on or after ,
, at the election of the Company, at a redemption price
equal to the stated amount thereof, plus accrued dividends to the date
of redemption.]
[Other redemption provisions:]
[Other terms and conditions:]
CONVERSION PROVISIONS:
[No provisions for conversion.]
[The Designated Preferred Stock (Depositary Shares) may be converted
in whole or in part at the option of [the Holder] [or of the Company],
on or after , at the following
conversion ratio: [conversion formula]
[Other conversion provisions:]
[Other terms and conditions:]
DATE OF BOARD OR COMMITTEE RESOLUTION ESTABLISHING THE TERMS AND CONDITIONS OF
THE DESIGNATED PREFERRED STOCK (DEPOSITARY SHARES):
FIRST TIME OF DELIVERY:
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc:
OTHER TERMS:*
- ---------------
* A description of particular tax, accounting or other unusual features
of the Securities should be set forth, or referenced to an attached
and accompanying description, if necessary to an understanding of the
transaction contemplated. Such a description might appropriately be
in the form in which such features will be described in the Prospectus
Supplement for the offering.
<PAGE> 1
Exhibit 1.2
BRUNSWICK CORPORATION
(a Delaware corporation)
Debt Securities
UNDERWRITING AGREEMENT
___________ __, 199_
To the [Underwriter[s] named in Schedule I]
[Representatives named in Schedule II
of the Underwriters named in Schedule I]
Ladies and Gentlemen:
Brunswick Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the underwriter or underwriters named in Schedule
I attached hereto (collectively, the "Underwriters," which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom you are acting as representatives (the "Representatives"),
certain of its debt securities (the "Securities") specified in Schedule II
attached hereto, on the terms and conditions stated herein and in Schedule II.
The Securities will be issued under an Indenture, dated as of March 15, 1987,
as amended and supplemented by the Supplemental Indenture, dated _________ __,
1996 (the "Indenture"), between the Company and __________________, as
successor to Continental Bank, National Association, as trustee (the
"Trustee"). If the firm or firms listed in Schedule I hereto include only the
firm or firms listed in Schedule II hereto, the terms "Underwriter" and
"Representatives" shall each be deemed to refer to such firm or firms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333- ________),
including a basic prospectus, relating to certain of its securities, including
the Securities, and the offering thereof from time to time, in accordance with
Rule 415 under the Securities Act of 1933, as amended (the "1933 Act"), and has
filed such amendments thereto as may have been required to the date hereof.
Such registration statement, as amended, has been declared effective by the
Commission, and the Indenture has been qualified under the Trust Indenture Act
of 1939, as amended (the "1939 Act"). As provided in Section 3(a), a
prospectus supplement reflecting the terms of the Securities, the terms of the
offering thereof and the other matters set forth therein has been prepared
<PAGE> 2
and will be filed pursuant to Rule 424 under the 1933 Act. Such prospectus
supplement, in the form first filed on or after the date hereof pursuant to
Rule 424, is herein referred to as the "Prospectus Supplement." Such
registration statement, as amended at the date hereof, including the exhibits
thereto and the documents incorporated by reference therein, is herein called
the "Registration Statement," and the basic prospectus included therein
relating to all offerings of securities under the Registration Statement, as
supplemented by the Prospectus Supplement, is herein called the "Prospectus,"
except that, if such basic prospectus is amended or supplemented on or prior to
the date on which the Prospectus Supplement is first filed pursuant to Rule
424, the term "Prospectus" shall refer to the basic prospectus as so amended or
supplemented and as supplemented by the Prospectus Supplement, in either case
including the documents filed by the Company with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"), that are
incorporated by reference therein. All references in this Agreement to
financial statements and schedules and other information which is "contained,"
"included" or "stated" in the Registration Statement or the Prospectus (and all
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include the filing of any document under the 1934 Act
which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be.
You have advised us that you and the other Underwriters, acting
severally and not jointly, desire to purchase the Securities and that you have
been authorized by the other Underwriters to execute this Agreement on their
behalf.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to and agrees
with each Underwriter as follows:
(i) At the time the Registration Statement became
effective (the "Effective Time") and at the date hereof the Registration
Statement and the Prospectus complied in all material respects with the
requirements of the 1933 Act, the rules and regulations of the Commission
thereunder (the "1933 Act Regulations"), the 1939 Act and the rules and
regulations of the Commission thereunder (the "1939 Act Regulations"); at the
Effective Time and at the date hereof, the Registration Statement did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to
2
<PAGE> 3
make the statements therein not misleading; at the Effective Time and at the
Closing Time, the Indenture did or will conform in all material respects to the
applicable requirements of the 1939 Act and the 1939 Act Regulations; and the
Prospectus, at the Effective Time, at the date hereof and at the Closing Time,
did not or will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this subsection
shall not apply to that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification of the Trustee on
Form T-1 under the 1939 Act ("Form T-1") or to statements in or omissions from
the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the Trustee
or any Underwriter through the Representatives expressly for use in the
Registration Statement or Prospectus or any amendment or supplement thereto.
(ii) The accountants who certified the financial
statements and supporting schedules included in the Registration Statement are
independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iii) The financial statements included in the
Registration Statement and the Prospectus present fairly the financial position
of the Company and its consolidated subsidiaries as of the dates indicated and
the results of their operations for the periods specified; except as otherwise
stated in the Registration Statement, said financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis; and the supporting schedules included in the Registration
Statement present fairly the information required to be stated therein.
(iv) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, except
as otherwise stated therein, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business and (B)
there have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Company and its subsidiaries considered as one
enterprise.
(v) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own, lease and operate its
properties and to conduct its business as
3
<PAGE> 4
described in the Prospectus and to enter into and perform its obligations under
this Agreement and the Indenture; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise.
(vi) Each subsidiary of the Company which is a
significant subsidiary (a "Subsidiary") as defined in Rule 405 of the 1933 Act
Regulations has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise; all of the issued and outstanding capital stock of each such
Subsidiary has been duly authorized and validly issued, is fully paid and
nonassessable and is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity.
(vii) The Indenture and each supplement thereto, if
any, to the date hereof have been duly authorized, executed and delivered by
the Company, has been duly qualified under the 1939 Act, and, assuming due
authorization, execution and delivery by the Trustee, constitutes a legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be subject to (A)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, and (B) general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law); and the Indenture conforms in all material
respects to the description thereof contained in the Prospectus.
(viii) When executed, authenticated, issued and
delivered in the manner provided for in the Indenture and sold and paid for as
provided herein, the Securities will constitute legal, valid and binding
obligations of the Company, entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be
4
<PAGE> 5
subject to (A) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, and (B) general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law); and the
Securities conform in all material respects to the description thereof
contained in the Prospectus.
(ix) Neither the Company nor any of the Subsidiaries
is in violation of its charter or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which the Company or any of the Subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any of the Subsidiaries is subject; and the execution, delivery and
performance of this Agreement and the Indenture, the issuance and delivery of
the Securities and the consummation of the transactions contemplated herein and
therein and compliance by the Company with its obligations hereunder and
thereunder have been duly authorized by all necessary corporate action and will
not conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of the Subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company or any of the Subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company or any
of the Subsidiaries is subject, nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or any of the
Subsidiaries under any applicable law, administrative regulation or
administrative or court decree.
(x) Other than as disclosed in the Registration
Statement, there is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company or any
of its Subsidiaries, which is required to be disclosed in the Registration
Statement, or which might result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospectus of the Company and its subsidiaries considered as one
enterprise, or which might materially and adversely affect the properties or
assets thereof or which might materially and adversely affect the consummation
of this Agreement or the issuance of the Securities pursuant to the Indenture;
all pending legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property or assets is
the subject which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, are, considered in the
aggregate, not material; and there are no
5
<PAGE> 6
contracts or documents of the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement by the 1933 Act
or by the 1933 Act Regulations which have not been so filed.
(xi) The Company and the Subsidiaries own or
possess, or can acquire on reasonable terms, the patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names (collectively,
"patent and proprietary rights") presently employed by them in connection with
the business now operated by them, and neither the Company nor any of the
Subsidiaries has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any patent or
proprietary rights, or of any facts which would render any patent and
proprietary rights invalid or inadequate to protect the interest of the Company
or any of the Subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise.
(xii) No authorization, approval or consent of any
court or governmental authority or agency is necessary in connection with the
offering, issuance or sale of the Securities hereunder, except such as may be
required under the 1933 Act, the 1933 Act Regulations, the 1939 Act, the 1939
Act Regulations or state securities laws.
(xiii) The Company and the Subsidiaries possess such
certificates, authorities or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct the business now
operated by them, and neither the Company nor any of the Subsidiaries has
received any notice of proceedings relating to the revocation or modification
of any such certificate, authority or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would materially
and adversely affect the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(xiv) This Agreement has been duly executed and
delivered by the Company.
(xv) The Company and the Subsidiaries have good and
sufficient title to all property described or referred to in the Registration
Statement as being owned by them, in each case free
6
<PAGE> 7
and clear of all liens, claims, security interests or other encumbrances, with
such exceptions as are described or referred to in the Registration Statement
or as are not material to the condition, financial or otherwise, or to the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xvi) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and regulations of
the Commission under the 1934 Act (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto become effective and at the
Closing Time, will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(b) Any certificate signed by any officer of the Company
and delivered to you or to counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
Section 2. Sale and Delivery to Underwriters; Closing. On the basis
of the representations and warranties contained herein and subject to the terms
and conditions herein set forth:
(a) The Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price set forth in Schedule II, the principal amount
of the Securities set forth opposite the name of such Underwriter on Schedule
I, plus any additional principal amount of the Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the date, time and location
specified in Schedule II (unless postponed in accordance with the provisions of
Section 10) or such other date, time and location as shall be agreed upon by
the Representatives and the Company (such time and date of payment and delivery
being herein called "Closing Time"). Unless otherwise specified in Schedule
II, payment shall be made to the Company by wire transfer of immediately
available funds, against delivery to the Representatives for the respective
accounts of the Underwriters of certificates for the Securities to be purchased
by them. Certificates for the Securities shall be in such denominations and
7
<PAGE> 8
registered in such names as the Representatives may request in writing at least
two business days prior to the Closing Time. It is understood that each
Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Securities which it has agreed to purchase. You, individually and not as
Representatives of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased by any
Underwriter whose money has not been received by the Closing Time but such
payment shall not relieve such Underwriter from its obligations hereunder. The
certificates, which may be in temporary form, for the Securities will be made
available for examination and packaging by the Representatives not later than
10:00 A.M. on the last business day prior to the Closing Time.
Section 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) In connection with the offering of the Securities,
the Company will prepare a Prospectus Supplement setting forth the principal
amount of the Securities covered thereby and their terms not otherwise
specified in the Indenture, the names of the Underwriters and the principal
amount of the Securities which each severally has agreed to purchase, the name
of the Representatives, the price at which the Securities are to be purchased
by the Underwriters from the Company, the initial public offering price, the
selling concession and reallowance, if any, and such other information as the
Representatives and the Company deem appropriate in connection with the
offering of the Securities. The Company will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule 424 of the
1933 Act Regulations and will furnish to the Underwriters named therein as many
copies of any preliminary prospectus supplement and the Prospectus as the
Representatives shall reasonably request.
(b) The Company will notify the Representatives promptly,
and confirm the notice in writing, (i) of the effectiveness of any amendment to
the Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any document to be
filed pursuant to the 1934 Act which will be incorporated by reference into the
Prospectus or the Registration Statement, (iii) of the receipt of any comments
from the Commission with respect to the Registration Statement or Prospectus,
(iv) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, (v) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or any order preventing or
suspending the use of any Prospectus or the initiation of any proceedings for
any such purpose, and (vi) of the suspension of the qualification of the
Securities for offering or sale in any
8
<PAGE> 9
jurisdiction, or the initiation or threatening of any proceedings for such
purpose of which the Company becomes aware. The Company will use all
reasonable efforts to prevent the issuance of any stop order or any order
preventing or suspending the use of any Prospectus or suspending such
qualification, and, in the event of the issuance of a stop order or any order
preventing or suspending the use of any Prospectus or suspending such
qualifications, to use all reasonable efforts to promptly obtain the lifting
thereof.
(c) The Company will give the Representatives notice of
its intention to file or prepare any amendment to the Registration Statement or
any amendment or supplement to the Prospectus, whether pursuant to the 1933
Act, the 1934 Act or otherwise, will furnish the Representatives with copies of
any such amendment or supplement within a reasonable amount of time prior to
such proposed filing, and will not file any such amendment or supplement to
which the Representatives or counsel for the Underwriters shall reasonably
object.
(d) The Company will deliver to the Representatives _____
(__) signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and as many conformed copies as the Representatives may
reasonably request and will also deliver to the Representatives a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters.
(e) The Company will furnish to each Underwriter, from
time to time during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act or the respective
applicable rules and regulations of the Commission thereunder.
(f) If any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary to amend the Registration
Statement or supplement the Prospectus to comply with the 1933 Act or the 1934
Act or the respective rules and regulations thereunder, the Company will
forthwith amend the Registration Statement or supplement the Prospectus, as the
case may be (in form and substance reasonably satisfactory to counsel for the
Underwriters), so as to correct such statement or omission or effect such
compliance and the Company will furnish to the Underwriters a reasonable number
of copies of such amendment or supplement.
9
<PAGE> 10
(g) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States as the Representatives may designate; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to file a general consent to
service of process in any jurisdiction. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement.
(h) The Company will make generally available to its
security holders as soon as practicable, but not later than 50 days after the
close of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve
month period beginning not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in said Rule 158) of
the Registration Statement relating to such Securities.
(i) The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds."
(j) The Company will effect the listing of the Securities
on the exchanges, if any, specified in Schedule II.
(k) Until the business day following the Closing Time or
such other date as may be specified in Schedule II, the Company will not,
without the Representatives' prior written consent, directly or indirectly,
sell, offer to sell or announce the offering of, or otherwise dispose of, any
debt securities of the Company covered by the Registration Statement or any
other registration statement filed under the 1933 Act.
(l) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to Section 13, 14
or 15 of the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the typing, printing and distribution of
this Agreement and the Indenture, (iii) the preparation, issuance and delivery
of the certificates for the Securities to the
10
<PAGE> 11
Underwriters, including transfer taxes, if any, payable upon the sale, issuance
and delivery to the Underwriters of the Securities, (iv) the fees and
disbursements of the Company's counsel and accountants, (v) the qualification
of the Securities under securities laws in accordance with the provisions of
Section 3(g) hereof, including filing fees and the fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey, (vi) the printing and delivery to the
Underwriters of copies of the Registration Statement as originally filed and of
each amendment thereto, of each preliminary prospectus, and of the Prospectus
and any amendments or supplements thereto, (vii) the printing and delivery to
the Underwriters of copies of the Blue Sky Survey, (viii) the fees of rating
agencies, (ix) the fees, if any, of the National Association of Securities
Dealers, Inc., (x) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee, in connection with the Indenture, and
(xi) the fees and expenses incurred in connection with the listing of the
Securities on the exchanges referred to in Section 3(j) hereof.
If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for such Underwriters.
Section 5. Conditions of Underwriters' Obligations. The obligations
of the Underwriters to purchase the Securities hereunder are subject to the
accuracy of the representations and warranties of the Company herein contained
as of the date hereof and at Closing Time, to the performance by the Company of
its obligations hereunder and under the Indenture, and to the following further
conditions:
(a) At the Closing Time, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission and
any request on the part of the Commission for additional information shall have
been complied with to the satisfaction of counsel for the Underwriters and (ii)
the rating assigned by any nationally recognized securities rating agency to
any debt securities of the Company as of the date hereof shall not have been
lowered since the date hereof and no such agency shall have publicly announced
that it has placed any of such debt securities on what is commonly termed a
"watch list" for possible downgrading.
(b) At the Closing Time, the Representatives shall have
received:
11
<PAGE> 12
(1) The favorable opinion, dated as of the Closing Time, of Mayer,
Brown & Platt, counsel to the Company, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(i) Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Delaware.
(ii) The Securities have been duly authorized for
issuance and sale to the Underwriters, and, when issued and delivered by the
Company pursuant to the terms of this Agreement, against payment of the
consideration set forth herein, will constitute legal, valid and binding
obligations of the Company, entitled to the benefits provided by the Indenture,
and be enforceable against the Company in accordance with their terms, subject
as to enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
(iii) This Agreement has been duly authorized,
executed and delivered by the Company.
(iv) The Indenture has been duly authorized,
executed and delivered by the Company and, assuming due authorization,
execution and delivery by the Trustee, constitutes a valid and binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(v) The Indenture has been duly qualified under the
1939 Act.
(vi) The Registration Statement is effective under
the 1933 Act and, to the best of their knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been issued
under the 1933 Act or proceeding therefor initiated or threatened by the
Commission.
(vii) The Securities conform in all material
respects to the descriptions thereof in the Prospectus and the Prospectus
Supplement and the form of certificate used to evidence the Securities is in
due and proper form.
(viii) At the Effective Time and at the date of the
execution of this Agreement, the Registration Statement and the Prospectus
(other than the financial statements and supporting schedules and other
financial or statistical data included therein and in the documents
incorporated by reference into the Registration Statement and the Prospectus,
as to which no opinion need
12
<PAGE> 13
be rendered) complied as to form in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations.
(ix) To the best of their knowledge and information,
there are no contracts, indentures, mortgages, loan agreements, notes, leases
or other instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by reference as
exhibits thereto.
(x) No authorization, approval, consent or order of
any court or governmental authority or agency is required in connection with
the offering, issuance or sale of the Securities to the Underwriters, except as
may be required under the 1933 Act, the 1933 Act Regulations, the 1939 Act, the
1939 Act Regulations or state securities laws.
(xi) To the best of their knowledge and information,
the execution, delivery and performance of this Agreement and the Indenture and
the consummation of the transactions contemplated herein and therein and
compliance by the Company with its obligations hereunder and thereunder will
not conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of the Subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company or any of the Subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company or any
of the Subsidiaries is subject, nor will such action result in any violation of
the provisions of the Certificate of Incorporation or By-laws of the Company,
or any applicable law, administrative regulation or administrative or court
decree.
(xii) Each document filed pursuant to the 1934 Act
(other than the financial statement and supporting schedules and other
financial or statistical data included therein, as to which no opinion need be
rendered) and incorporated or deemed to be incorporated by reference in the
Prospectus complied when so filed as to form in all material respects with the
1934 Act and the 1934 Act Regulations.
(2) The favorable opinion, dated as of the Closing Time, of Robert
T. McNaney, General Counsel to the Company, in form and substance satisfactory
to counsel for the Underwriters, to the effect that:
(i) To the best of his knowledge and information,
the Company is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify
13
<PAGE> 14
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(ii) Each Subsidiary has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in
the Registration Statement and, to the best of his knowledge and information,
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction to which such qualification is required, except
where the failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise; all of the issued and outstanding capital stock of each Subsidiary
has been duly authorized and validly issued, is fully paid and nonassessable
and, to the best of his knowledge and information, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(iii) Other than as disclosed in the Registration
Statement, to the best of his knowledge and information, there are no legal or
governmental proceedings pending or threatened which are required to be
disclosed in the Registration Statement, and all pending legal or governmental
proceedings to which the Company or any subsidiary is a party or to which any
of their property is subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the business,
are, considered in the aggregate, not material.
(iv) To the best of his knowledge and information,
there are no contracts, indentures, mortgages, loan agreements, notes, leases
or other instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by reference as
exhibits thereto, the descriptions thereof or references thereto are correct,
and no default exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument so
described, referred to, filed or incorporated by reference.
(v) The Company has corporate power and authority to
own, lease and operate its properties and to conduct its business as described
in the Registration Statement and to enter
14
<PAGE> 15
into and perform its obligations under this Agreement and the Indenture.
(3) The favorable opinion, dated as of the applicable Closing
Time, of _____________________________, counsel for the Underwriters, with
respect to the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Prospectus (together with any supplement thereto)
and other related matters as the Representatives may reasonably require.
(4) In giving their opinions required by subsections (b)(1),
(b)(2) and (b)(3), respectively, of this Section, Mayer, Brown & Platt, Mr.
McNaney and ____________________________ shall each additionally state that
nothing has come to their attention that has caused them to believe that the
Registration Statement (except for financial statements and schedules and other
financial or statistical data included or incorporated by reference therein, as
to which counsel need make no statement), at the time it became effective or at
the date of this Agreement, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus (except for
financial statements and schedules and other financial or statistical data
included or incorporated by reference therein, as to which counsel need make no
statement), at the date of this Agreement or at Closing Time, included an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) At the Closing Time there shall not have been, since
the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Representatives shall have received a
certificate of the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company, dated as of such
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1 hereof are true
and correct with the same force and effect as though expressly made at and as
of such Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior
to such Closing Time, and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the Commission.
15
<PAGE> 16
(d) At the time of the execution of this Agreement and at
the Closing Time, the Representatives shall have received from Arthur Andersen
LLP letters, dated such dates, in form and substance satisfactory to the
Representatives, to the effect that (i) they are independent public accountants
with respect to the Company and its subsidiaries within the meaning of the 1933
Act and the 1933 Act Regulations; (ii) it is their opinion that the financial
statements and supporting schedules included in or incorporated by reference
into the Registration Statement and covered by their opinions therein comply as
to form in all material respects with the applicable accounting requirements of
the 1933 Act and the 1933 Act Regulations and the 1934 Act and 1934 Act
Regulations; (iii) based upon limited procedures set forth in detail in such
letters, nothing has come to their attention which causes them to believe that
(A) any unaudited financial statements and supporting schedules of the Company
and its subsidiaries included in or incorporated by reference into the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations and the 1934 Act and 1934 Act Regulations or are
not presented in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited financial
statements included in or incorporated by reference into the Registration
Statement and the Prospectus, or (B) at a specified date not more than five
days prior to the date of the letters, there has been any change in the capital
stock of the Company or any increase in the consolidated long-term debt of the
Company and its subsidiaries or any decrease in consolidated net current assets
or net assets as compared with the amounts shown in the most recent financial
statements included in or incorporated by reference into the Registration
Statement or, during the period from the date of the most recent financial
statements included in or incorporated by reference into the Registration
Statement to a specified date not more than five days prior to the date of the
letters, there were any decreases, as compared with the corresponding period in
the preceding year, in consolidated revenues, net income or net income per
share of the Company and its subsidiaries, except in all instances for changes,
increases or decreases which the Registration Statement and the Prospectus
disclose have occurred or may occur; and (iv) in addition to the examination
referred to in their opinions and the limited procedures referred to in clause
(iii) above, they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are included in or incorporated by reference into
the Registration Statement and the Prospectus and which are specified by the
Representatives, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial and
other records of the Company and its subsidiaries identified in such letters.
16
<PAGE> 17
(e) At the Closing Time, the Securities sold thereon
shall have been approved for listing on the exchanges referred to in Section
3(j) hereof.
(f) At the Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and sale of the
Securities herein contemplated and related proceedings, or in order to evidence
the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Representatives
and counsel for the Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representatives by notice to the Company at any time at or
prior to the applicable Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof. Notwithstanding any such termination, the provisions of Sections 6, 7,
and 8 hereof shall remain in effect.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue
17
<PAGE> 18
statement or omission, if such settlement is effected with the written consent
of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to section 6(c) hereof, the fees and disbursements
of counsel chosen by you to represent the Underwriters), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense (x) to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) or to that part of the
Registration Statement which shall constitute the Form T-1, or (y) if such
untrue statement or omission or alleged untrue statement or omission was
contained or made in any preliminary prospectus and corrected in a Prospectus
and (i) any such loss, liability, claim, damage or expense suffered or incurred
by any Underwriter (or any person who controls any Underwriter) resulted from
an action, claim or suit by any person who purchased the Securities which are
the subject thereof from such Underwriter in the offering and (ii) such
Underwriter failed to deliver or provide a copy of the Prospectus to such
person at or prior to the confirmation of the sale of such securities in any
case where such delivery is required by the 1933 Act or the 1933 Act
Regulations.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
18
<PAGE> 19
(c) Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of any such action. In no event shall the indemnifying parties
be liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liability, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more of the Underwriters, as incurred, in
such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount hereunder bears to
the initial public offering price of the Securities, and the Company is
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each person,
if any, who controls an Underwriter within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Company submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Company or any Underwriter or
controlling person and shall survive delivery of and payment for the
Securities.
19
<PAGE> 20
Section 9. Termination.
(a) The Representatives may terminate this Agreement, by
notice to the Company, at any time at or prior to the applicable Closing Time
(i) if there has been, since the date of this Agreement or since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or
elsewhere or any outbreak of hostilities or escalation thereof or other
calamity or crisis the effect of which is such as to make it, in the judgment
of the Representatives, impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (iii) if trading in any securities
of the Company has been suspended by the Commission, or if trading generally on
either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said
exchanges or by order of the Commission or any other governmental authority, or
if a banking moratorium has been declared by either federal or New York
authorities.
(b) If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party, except to the extent provided in Section 4 hereof. Notwithstanding any
such termination, the provisions of Section 6, 7 and 8 hereof shall remain in
effect.
Section 10. Default by One or More of the Underwriters. If one or
more of the underwriters shall fail at Closing Time to purchase the Securities
that it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of the Securities to be
purchased pursuant to this Agreement, the non-defaulting Underwriters shall be
obligated to purchase the full amount thereof in the proportions that their
respective underwriting obligations under this Agreement bear to the
20
<PAGE> 21
underwriting obligations of all such non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the aggregate principal amount of the Securities to
be purchased pursuant to this Agreement, this Agreement shall terminate,
without any liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Company shall
have the right to postpone Closing Time for a period not exceeding seven days
in order to effect any required changes in the Registration Statement, the
Prospectus, the applicable Prospectus Supplement or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives c/o _______________,
___________________, __________, ______ ______, attention of ____________,
________; notices to the Company shall be directed to it at 1 North Field Ct.,
Lake Forest, Illinois 60045, attention of Robert T. McNaney, General Counsel.
Section 12. Parties. This Agreement shall inure to the benefit of
and be binding upon the Underwriters named therein and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters named therein and the Company and their respective
successors and the controlling persons and officers and directors referred to
in Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters named therein and the Company and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representative(s), and for the benefit of no other person, firm or corporation.
No purchaser of any of the Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
21
<PAGE> 22
Section 13. Governing Law and Time. This Agreement shall be governed
by and construed in accordance with the laws of the state of New York
applicable to agreements made and to be performed in said State. Except as
otherwise set forth herein, specified times of day refer to New York City time.
22
<PAGE> 23
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
BRUNSWICK CORPORATION
By:
-------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
- ----------------------------------------
Name:
Title:
For itself and as Representatives of the
other Underwriter named in Schedule I
attached to the Underwriting Agreement.
23
<PAGE> 24
SCHEDULE I
<TABLE>
<CAPTION>
Principal Amount
of Securities
Underwriters to Be Purchased
------------ -----------------
<S> <C>
$
Total . . . . . . . . . . . . . . . . . . . . . . . . . $
===========
</TABLE>
I-1
<PAGE> 25
SCHEDULE II
Underwriting Agreement dated
Registration Statement No. 333-
Representative(s):
Title, Purchase Price and Description of Securities;
Title:
Principal amount:
Current ratings:
Interest rate:
Interest payment dates:
Date of maturity:
Price to public:
Commission:
Purchase price to Underwriters:
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of funds payable at Closing: Wire transfer of immediately available funds
Wire Transfer Instructions:
Delayed Delivery Arrangements:
Listing requirements:
Other:
II-1
<PAGE> 1
Exhibit 4.6
- --------------------------------------------------------------------------------
BRUNSWICK CORPORATION
STANDARD [COMMON/PREFERRED] STOCK WARRANT
AGREEMENT PROVISIONS
______________, 1996
- --------------------------------------------------------------------------------
<PAGE> 2
From time to time, Brunswick Corporation, a Delaware corporation (the
"Company"), may enter into one or more warrant agreements that provide for the
issuance and sale of warrants ("Warrants") to purchase shares of the Company's
[common stock, $.75 par value (the "Common Stock")/specify preferred stock,
$.75 par value (the "Preferred Stock")] (such shares are hereinafter referred
to as the "Shares" and, where appropriate, such term shall also mean the other
securities or property purchasable upon the exercise of the Warrants upon the
happening of certain events as provided for herein, and such [Common/Preferred]
Stock is hereinafter referred to as the "Stock"). The standard provisions set
forth herein may be included or incorporated by reference in any such warrant
agreement (a "Warrant Agreement"). The Warrant Agreement, including the
provisions incorporated therein by reference, is herein referred to as this
"Agreement." The person named as the "Warrant Agent" in the first paragraph of
the Warrant Agreement is herein referred to as the "Warrant Agent." Unless
otherwise defined in this Agreement or in the Warrant Agreement, as the case
may be, terms defined in the Warrant Agreement are used herein as therein
defined and terms defined herein are used in the Warrant Agreement as herein
defined.
SECTION 1. Number of Warrants Unlimited; Issuable from Time to Time.
The number of Warrants which may be issued and delivered under this Agreement
is unlimited.
There shall be established in or pursuant to a resolution of the Board
of Directors of the Company or established in one or more warrant agreements
supplemental hereto, prior to the issuance of any Warrants:
(a) the offering price,
(b) the designation and terms of such Warrants and the Stock
purchasable upon exercise of such Warrants,
(c) the date on which the right to exercise such Warrants shall
commence,
(d) if the Warrants are issued together as a unit with any other
securities of the Company, the date after which the Warrants
shall be freely tradeable separately from such other
securities (the "Distribution Date") and if the Company may at
its option or under circumstances described therein provide
for an earlier Distribution Date,
(e) the Expiration Date pursuant to Section 6,
(f) the Exercise Price and any form of consideration other than
lawful money of the United States of America by
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which the Exercise Price may be paid pursuant to Section 6,
(g) the Call Price, Call Date and Call Terms pursuant to
Section 7,
(h) the limitations, if any, upon the Reduced Exercise Price and
the Reduced Exercise Price Period pursuant to Section 8,
(i) the circumstances, if any, under which the Exercise Price and
the number of Shares purchasable upon the exercise of each
Warrant and the number of Warrants outstanding are subject to
adjustment and the manner of making any such adjustment.
SECTION 2. Form of Warrant Certificates. The certificates evidencing
the Warrants (the "Warrant Certificates") to be delivered pursuant to this
Agreement shall be in registered form only. The Warrant Certificates shall be
in substantially such form or forms as shall be established by the Company from
time to time pursuant to one or more resolutions of the Board of Directors of
the Company or in one or more warrant agreements supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Agreement, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange or
as may, consistently herewith, be determined by the officers executing such
Warrants, as evidenced by their execution of the Warrants.
SECTION 3. Execution of Warrant Certificates. Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board, its
Chief Executive Officer, its President, a Vice President or its Treasurer and
attested by its Secretary or Assistant Secretary, under its corporate seal.
Each such signature upon the Warrant Certificates may be in the form of a
facsimile signature of the current or any future Chairman of the Board, Chief
Executive Officer, President, Vice President, Treasurer, Secretary or Assistant
Secretary and may be imprinted or otherwise reproduced on the Warrant
Certificates and for that purpose the Company may adopt and use the facsimile
signature of any person who shall have been Chairman of the Board, Chief
Executive Officer, President, Vice President, Treasurer, Secretary or Assistant
Secretary, notwithstanding the fact that at the time the Warrant Certificates
shall be countersigned and delivered or disposed of such person shall have
ceased to hold such office. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Warrant Certificates.
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If any officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer before the Warrant Certificates so
signed shall have been countersigned by the Warrant Agent or disposed of by the
Company, such Warrant Certificates nevertheless may be countersigned and
delivered or disposed of as though such person had not ceased to be such
officer of the Company; and any Warrant Certificate may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date of the execution of this Agreement
any such person was not such officer.
SECTION 4. Registration and Countersignature. Warrant Certificates
shall be manually countersigned and dated the date of countersignature by the
Warrant Agent and shall not be valid for any purpose unless so countersigned.
The Warrants shall be numbered and shall be registered in a register (the
"Warrant Register") to be maintained by the Warrant Agent.
The Company and the Warrant Agent may deem and treat the registered
holder of a Warrant Certificate as the absolute owner thereof (notwithstanding
any notation of ownership or other writing thereon made by anyone), for the
purpose of any exercise thereof or any distribution to the holder thereof and
for all other purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
SECTION 5. Registration of Transfers and Exchanges. The Warrant
Agent shall from time to time register the transfer of any outstanding Warrant
Certificates in the Warrant Register, upon surrender of such Warrant
Certificates, duly endorsed, and accompanied by a written instrument or
instruments of transfer in form satisfactory to the Warrant Agent, duly signed
by the registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, such signature to be
guaranteed by (a) a bank or trust company, (b) a broker or dealer that is a
member of the National Association of Securities Dealers, Inc. (the "NASD") or
(c) a member of a national securities exchange. Upon any such registration of
transfer, a new Warrant Certificate shall be issued to the transferee.
Warrant Certificates may be exchanged at the option of the holder or
holders thereof, when surrendered to the Warrant Agent at its offices or agency
maintained for the purpose of exchanging, transferring and exercising the
Warrants (a "Warrant Agent Office") or at the offices of any successor Warrant
Agent as provided in Section 19 hereof, for another Warrant Certificate or
other Warrant Certificates of like tenor representing in the aggregate a like
number of Warrants.
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The Warrant Agent is hereby authorized to countersign, in accordance
with the provisions of this Section 5 and of Section 4, and deliver the new
Warrant Certificates required pursuant to the provisions of this Section, and
for the purpose of any distribution of Warrant Certificates contemplated by
Section 14.
No service charge shall be made for any exchange or registration of
transfer of Warrant Certificates, but the Company may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge that
may be imposed in connection with any such exchange or registration of
transfer. Whenever any Warrant Certificates are surrendered for exchange or
registration of transfer, an authorized officer of the Warrant Agent shall
mutually countersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect
any exchange or registration of transfer that will result in the issuance of a
Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange or registration of transfer of Warrant Certificates shall be the valid
obligations of the Company, evidencing the same obligations and entitled to the
same benefits under this Agreement as the Warrant Certificates surrendered for
such exchange or registration of transfer.
SECTION 6. Duration and Exercise of Warrants.
(a) The Warrants shall expire on (a) the close of business on the
date set forth pursuant to Section 1, or (b) such later date as shall be
determined in the sole discretion of the Company, in a written statement to the
Warrant Agent and with notice to registered holders of Warrants in the manner
provided for in Section 16 (such date of expiration being herein referred to as
the "Expiration Date"). On and after the Distribution Date, each Warrant may
be exercised on any business day on or prior to the close of business on the
Expiration Date. After the close of business on the Expiration Date, the
Warrants will become void and of no value.
(b) Subject to the provisions of this Agreement, including Section
14, the holder of each Warrant shall have the right to purchase from the
Company (and the Company shall issue and sell to such holder of a Warrant) one
fully paid and nonassessable Share at the price set forth pursuant to Section 1
(such price, as may be adjusted from time to time as provided in Section 14,
being the "Exercise Price") upon depositing with the Warrant Agent at a Warrant
Agent Office the Warrant Certificate evidencing such Warrant, with the form of
election to purchase on the reverse thereof duly completed and signed by the
registered holder or holders thereof or by the duly appointed legal
representative
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thereof or by a duly authorized attorney, such signature to be guaranteed by a
bank or trust company, by a broker or dealer which is a member of NASD or by a
member of a national securities exchange, and upon payment of the Exercise
Price for the number of Shares in respect of which such Warrant is being
exercised. Unless otherwise provided pursuant to Section 1, payment of the
aggregate Exercise Price shall be made in lawful money of the United States of
America. If the Warrant Agent receives moneys in payment of the purchase price
for Warrants, the Warrant Agent shall deposit all funds received by it in the
account of the Company maintained with it for such purpose. If the Warrant
Agent receives consideration other than moneys for Warrants, the Warrant Agent
shall deliver such consideration directly to the Company. In either case, the
Warrant Agent shall advise the Company by telex or telecopy at the end of each
day as to the Warrant Certificates that have been exercised and the amount of
moneys deposited to its account or the type and amount of other consideration
to be delivered to it.
(c) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Warrants exercised, (ii)
the instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Shares to which such holder is
entitled upon such exercise, (iii) delivery of Warrant Certificates evidencing
the balance, if any, of the Warrants remaining after such exercise and (iv)
such other information as the Company shall reasonably require.
(d) Subject to Section 10, upon such surrender of a Warrant
Certificate and payment of the Exercise Price, the Warrant Agent shall
requisition from the Company's Stock transfer agent (the "Transfer Agent") for
issuance and delivery to or upon the written order of the registered holder of
such Warrant Certificate and in such name or names as such registered holder
may designate, a certificate or certificates for the Share or Shares issuable
upon the exercise of the Warrant or Warrants evidenced by such Warrant
Certificate(s). Such certificate or certificates shall be deemed to have been
issued and any person so designated to be named therein shall be deemed to have
become the holder of record of such Share or Shares as of the date of the
surrender of such Warrant Certificate duly executed and payment of the Exercise
Price. The Warrants evidenced by a Warrant Certificate shall be exercisable,
at the election of the registered holder thereof, either as an entirety or from
time to time for a portion of the number of Warrants specified in the Warrant
Certificate. If less than all of the Warrants evidenced by a Warrant
Certificate surrendered upon the exercise of Warrants are exercised at any time
prior to the date of expiration for the Warrants, a new Warrant Certificate or
Certificates shall be issued for the remaining number of Warrants evidenced by
the Warrant Certificate so surrendered, and the Warrant Agent is hereby
authorized to countersign the required new
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Warrant Certificate or Certificates pursuant to the provisions of Section 5 and
this Section 6.
SECTION 7. Call of Warrants by the Company. If so provided in the
Warrant Agreement, the Company shall have the right to call and repurchase any
or all Warrants at the price (the "Call Price") and on or after the date (the
"Call Date") and upon the terms (the "Call Terms") as shall be set forth
pursuant to Section 1. Notice of such Call Price, Call Date and Call Terms
shall be given to registered holders of Warrants in the manner provided in
Section 16.
SECTION 8. Optional Reduction of Exercise Price. Subject to the
limits, if any, set forth pursuant to Section 1, the Company shall have the
right, at any time or from time to time, voluntarily to reduce the then current
Exercise Price to such amount (the "Reduced Exercise Price") and for such
period or periods of time, which may be through the close of business on the
Expiration Date (the "Reduced Exercise Price Period") as may be deemed
appropriate by the Company. Notice of any such Reduced Exercise Price and
Reduced Exercise Price Period shall be given to registered holders of Warrants
in the manner provided in Section 16. After the termination of the Reduced
Exercise Price Period, the Exercise Price shall be such Exercise Price that
would have been in effect, as adjusted pursuant to the provisions of Section
14, had there been no reduction in the Exercise Price pursuant to the
provisions of this Section 8. No reduction of the then current Exercise Price
pursuant to the provisions of this Section 8 shall be deemed for the purposes
of Section 14 hereof to alter or adjust the Exercise Price.
SECTION 9. Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exercise, registration of transfer or exchange
shall, if surrendered to the Company, be delivered to the Warrant Agent, and
all Warrant Certificates surrendered or so delivered to the Warrant Agent shall
be promptly canceled by the Warrant Agent and shall not be reissued and, except
as expressly permitted by this Agreement, no Warrant Certificate shall be
issued hereunder in lieu thereof. The Warrant Agent shall deliver to the
Company from time to time, or otherwise dispose of, canceled Warrant
Certificates in a manner satisfactory to the Company.
SECTION 10. Payment of Taxes. The Company will pay all documentary
stamp taxes attributable to the initial issuance of Warrants and of Shares upon
the exercise of Warrants; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any
transfer involved in the issue of any Warrant Certificates or any certificates
for Shares in a name other than the registered holder of a Warrant Certificate
surrendered upon the exercise of a Warrant, and the Company shall not be
required to issue or deliver such certificates
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unless or until the person or persons requesting the issuance thereof shall
have paid to the Company the amount of such tax or shall have established to
the satisfaction of the Company that such tax has been paid.
SECTION 11. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Company and the Warrant Agent of evidence
reasonably satisfactory to them of the ownership and the loss, theft,
destruction or mutilation of the Warrant Certificate, and of indemnity
reasonably satisfactory to them, and, in the case of mutilation, upon surrender
thereof to the Warrant Agent for cancellation, then, in the absence of notice
to the Company or the Warrant Agent that such Warrant Certificate has been
acquired by a bona fide purchaser, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and deliver, in
exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant
Certificate, a new Warrant Certificate of the same tenor and for a like number
of Warrants. Upon the issuance of any new Warrant Certificate under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other expense (including the fees and expenses of the Warrant Agent) in
connection therewith. Every substitute Warrant Certificate executed and
delivered pursuant to this Section in lieu of any lost, stolen or destroyed
Warrant Certificate shall constitute an additional contractual obligation of
the Company, whether or not the lost, stolen or destroyed Warrant Certificate
shall be at any time enforceable by anyone, and shall be entitled to the
benefits of this Agreement equally and proportionately with any and all other
Warrant Certificates duly executed and delivered hereunder. The provisions of
this Section are exclusive and shall preclude (to the extent lawful) any and
all other rights or remedies with respect to the replacement of mutilated,
lost, stolen or destroyed Warrant Certificates.
SECTION 12. Reservation of Shares. For the purpose of enabling it to
satisfy any obligation to issue Shares upon exercise of Warrants, the Company
will at all times through the close of business on the Expiration Date, reserve
and keep available, free from preemptive rights and out of its aggregate
authorized but unissued or treasury shares of Stock, the number of Shares
deliverable upon the exercise of all outstanding Warrants, and the Transfer
Agent for such Stock is hereby irrevocably authorized and directed at all times
to reserve such number of authorized and unissued or treasury shares of Stock
as shall be required for such purpose. The Company will keep a copy of this
Agreement on file with such Transfer Agent and with every transfer agent for
any shares of the Company's capital stock issuable upon the exercise of
Warrants pursuant to Section 14. The Warrant Agent is hereby irrevocably
authorized to requisition from time to time from such Transfer Agent Stock
certificates issuable upon exercise of
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outstanding Warrants, and the Company will supply such Transfer Agent with duly
executed Stock certificates for such purpose.
Before taking any action that would cause an adjustment pursuant to
Section 14 reducing the Exercise Price below the then par value (if any) of the
Shares issuable upon exercise of the Warrants, the Company will take any
corporate action that may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid and nonassessable
Shares at the Exercise Price as so adjusted.
The Company covenants that all Shares issued upon exercise of the
Warrants, will, upon issuance in accordance with the terms of this Agreement,
be fully paid and nonassessable and free from all taxes, liens, charges and
security interests created by or imposed upon the Company with respect to the
issuance and holding thereof.
SECTION 13. Obtaining of Governmental Approvals and Stock Exchange
Listings. The Company will from time to time take all action that may be
necessary (a) to obtain and keep effective any and all permits, consents and
approvals of governmental agencies and authorities and to make filings under
federal and state securities acts and laws, which may be or become requisite in
connection with the issuance, sale, transfer and delivery of the Warrant
Certificates, the exercise of the Warrants and the issuance, sale, transfer and
delivery of the Shares issued upon exercise of Warrants, and (b) to have the
shares of Stock, immediately upon their issuance upon exercise of Warrants, (i)
listed on each national securities exchange on which the Stock is then listed
or (ii) if the Stock is not then listed on any national securities exchange,
listed for quotation on the NASD Automated Quotations System ("NASDAQ")
National Market System ("NASDAQ/NMS") or such other over-the-counter quotation
system on which the Stock may then be listed.
SECTION 14. Adjustment of Exercise Price and Number of Shares
Purchasable or Number of Warrants. Except as may be otherwise provided in
accordance with Section 1, the Exercise Price, the number of Shares purchasable
upon the exercise of each Warrant and the number of Warrants outstanding are
subject to adjustment from time to time upon the occurrence of the events
enumerated in this Section 14.
(a) If the Company shall (i) pay a dividend on its capital stock
(including Stock) in shares of Stock, (ii) subdivide its outstanding shares of
Stock, (iii) combine its outstanding shares of Stock into a smaller number of
shares of Stock or (iv) issue any shares of its capital stock in a
reclassification of the Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the
continuing corporation), the number of Shares purchasable upon exercise of
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each Warrant immediately prior thereto shall be adjusted so that the holder of
each Warrant shall be entitled to receive the kind and number of Shares or
other securities of the Company which such holder would have owned or have been
entitled to receive after the happening of any of the events described above,
had such Warrant been exercised immediately prior to the happening of such
event or any record date with respect thereto. An adjustment made pursuant to
this paragraph (a) shall become effective immediately after the effective date
of such event retroactive to the record date, if any, for such event.
(b) In the event of any capital reorganization or any
reclassification of the Stock (except as provided in paragraph (a) above or
paragraph (h) below), any holder of Warrants upon exercise thereof shall be
entitled to receive, in lieu of the Stock to which he would have become
entitled upon exercise immediately prior to such reorganization or
reclassification, the shares (of any class or classes) or other securities or
property of the Company that he would have been entitled to receive at the same
aggregate Exercise Price upon such reorganization or reclassification if his
Warrants had been exercised immediately prior thereto; and in any such case,
appropriate provision (as determined in good faith by the Board of Directors of
the Company, whose determination shall be conclusive and shall be evidenced by
a resolution filed with the Warrant Agent) shall be made for the application of
this Section 14 with respect to the rights and interests thereafter of the
holders of Warrants (including the allocation of the adjusted Exercise Price
between or among shares of classes of capital stock), to the end that this
Section 14 (including the adjustments of the number of shares of Stock or other
securities purchasable and the Exercise Price thereof) shall thereafter be
reflected, as nearly as reasonably practicable, in all subsequent exercises of
the Warrants for any shares or securities or other property thereafter
deliverable upon the exercise of the Warrants.
(c) Except for adjustments required by paragraph (h) hereof, no
adjustment in the number of Shares purchasable hereunder shall be required
unless such adjustment would require an increase or decrease of at least one
percent (1%) in the number of Shares purchasable upon the exercise of each
Warrant; provided, however, that any adjustments which by reason of this
paragraph (c) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations shall be made to
the nearest cent and to the nearest one-hundredth of a Share, as the case may
be.
(d) Whenever the number of Shares purchasable upon the exercise of
each Warrant is adjusted as herein provided (whether or not the Company then or
thereafter elects to issue additional Warrants in substitution for an
adjustment in the number of Shares as provided in paragraph (f)), the Exercise
Price payable upon
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exercise of each Warrant shall be adjusted by multiplying such Exercise Price
immediately prior to such adjustments by a fraction, of which the numerator
shall be the number of Shares purchasable upon the exercise of each Warrant
immediately prior to such adjustment, and the denominator shall be the number
of Shares so purchasable immediately thereafter.
(e) For the purpose of this Section 14, the term "shares of stock"
shall mean (i) the class of stock designated as the [Common/specify preferred
stock] Stock of the Company at the date of this Agreement, or (ii) any other
class of stock resulting from successive changes or reclassification of such
shares consisting solely of changes in par value, of from par value to no par
value, or from no par value to par value. If at any time, as a result of an
adjustment made pursuant to paragraph (a) or (b) above, the holders of Warrants
shall become entitled to purchase any shares of the Company other than shares
of Stock, thereafter the number of shares so purchasable upon exercise of each
Warrant and the Exercise Price of such shares shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Shares contained in paragraph (a) through
(d), inclusive, above, and the provisions of Sections 5, 10, 12, 13(a) and 16,
with respect to the Shares, shall apply on like terms to any such other shares.
(f) The Company may elect, on or after the date of any adjustment
required by paragraphs (a) or (b) of this Section 14, to adjust the number of
Warrants in substitution for an adjustment in the number of Shares purchasable
upon the exercise of a Warrant. Each of the Warrants outstanding after such
adjustment of the number of Warrants shall be exercisable for the same number
of Shares as immediately prior to such adjustment. Each Warrant held of record
prior to such adjustment of the number of Warrants shall become that number of
Warrants (calculated to the nearest hundredth) obtained by dividing the
Exercise Price in effect prior to adjustment of the Exercise Price by the
Exercise Price in effect after the adjustment of the Exercise Price. The
Company shall notify the holders of Warrants in the same manner as provided in
the first paragraph of Section 16, of its election to adjust the number of
Warrants, indicating the record date for the adjustment, and, if known at the
time, the amount of the adjustment to be made. This record date may be the
date on which the Exercise Price is adjusted or any day thereafter. Upon each
adjustment of the number of Warrants pursuant to this paragraph (f) the Company
shall, as promptly as practicable, cause to be distributed to holders of record
of Warrants on such record date Warrant Certificates evidencing, subject to
Section 15, the additional Warrants to which such holders shall be entitled as
a result of such adjustment, or, at the option of the Company, shall cause to
be distributed to such holders of record in substitution and replacement for
the Warrant Certificates held by such holders prior to the date of adjustment,
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and upon surrender thereof, if required by the Company, new Warrant
Certificates evidencing all the Warrants to be issued, executed and registered
in the manner specified in Sections 4 and 5 (and which may bear, at the option
of the Company, the adjusted Exercise Price) and shall be registered in the
names of the holders of record of Warrant Certificates on the record date
specified in the notice.
(g) Except as provided in paragraph (a) of this Section 14, no
adjustment in respect of any dividends shall be made during the term of a
Warrant or upon the exercise of a Warrant.
(h) In case of any consolidation of the Company with or merger of
the Company into another corporation or in case of any sale or conveyance to
another corporation of the property of the Company as an entirety or
substantially as an entirety, the Company or such successor or purchasing
corporation, as the case may be, shall execute with the Warrant Agent an
agreement that each holder of a Warrant shall have the right thereafter upon
payment of the Exercise Price in effect immediately prior to such action to
purchase upon exercise of each Warrant the kind and amount of shares and other
securities and property which he would have owned or have been entitled to
receive after the happening of such consolidation, merger, sale or conveyance
had such Warrant been exercised immediately prior to such action. The Company
shall mail by first class mail, postage prepaid, to each holder of a Warrant,
notice of the execution of any such agreement. Such agreement shall provide
for adjustments, which shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Section 14. The provisions of this
paragraph (h) shall similarly apply to successive consolidations, mergers,
sales or conveyances. The Warrant Agent shall be under no duty or
responsibility to determine the correctness of any provisions contained in any
provisions contained in any such agreement relating either to the kind or
amount of shares of stock or other securities or property receivable upon
exercise of Warrants or with respect to the method employed and provided
therein for any adjustments and shall be entitled to rely upon the provisions
contained in any such agreement.
(i) Irrespective of any adjustments in the Exercise Price or the
number or kind of shares purchasable upon the exercise of the Warrants,
Warrants theretofore or thereafter issued may continue to express the same
price and number and kind of shares as are stated in the Warrants initially
issuable pursuant to this Agreement.
SECTION 15. Fractional Warrants and Fractional Shares.
(a) The Company shall not be required to issue fractions of
Warrants on any distribution of Warrants to holders of Warrant Certificates
pursuant to Section 14(f) or to distribute Warrant
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Certificates that evidence fractional Warrants. In lieu of such fractional
Warrants there shall be paid to the registered holders of the Warrant
Certificates with regard to which such fractional Warrants would otherwise be
issuable, an amount in cash equal to the same fraction of the current market
value of a full Warrant. For purposes of this Section 15(a), the current
market value of a Warrant shall be the closing price of one Warrant (as
determined pursuant to paragraph (c) below) for the trading day immediately
prior to the date on which such fractional Warrant would have been otherwise
issuable.
(b) Notwithstanding any adjustment pursuant to Section 14 in the
number of Shares purchasable upon the exercise of Warrant, the Company shall
not be required to issue fractions of Shares upon exercise of the Warrants or
to distribute certificates which evidence fractional Shares. In lieu of
fractional Shares, there shall be paid to the registered holders of Warrant
Certificates at the time such Warrant Certificates are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of a share of Stock. For purposes of this Section 15(b), the current
market value of a share of Stock shall be the closing price of a share of Stock
(as determined pursuant to paragraph (c) below) for the trading day immediately
prior to the date of such exercise.
(c) The closing price for each day shall be the last sale price,
regular way, or, if no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, for such day, in either case as
reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the Warrants or Stock, as the case may be, is not listed or
admitted to trading on such exchange, as reported on the principal consolidated
transaction reporting system with respect to securities listed on the principal
national securities exchange on which the Warrants or Stock, respectively, is
listed or admitted to trading, or if the Warrants or Stock, as the case may be,
is not listed or admitted to trading on any national securities exchange, as
reported on NASDAQ/NMS or, if the Warrants or Stock, as the case may be, is not
listed or admitted to trading on NASDAQ/NMS, as reported on NASDAQ.
SECTION 16. Notices to Warrantholders. Upon any adjustment of the
number of Shares purchasable upon exercise of each Warrant, the Exercise Price
or the number of Warrants outstanding pursuant to Section 14, the Company
within 20 calendar days thereafter shall (i) cause to be filed with the Warrant
Agent a certificate of a firm of independent public accountants of recognized
standing selected by the Company (who may be the regular auditors of the
Company) setting forth the Exercise Price and either the number of Shares
purchasable upon exercise of each Warrant or the additional number of Warrants
to be issued for each previously outstanding Warrant, as the case may be, after
such adjustment and setting
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<PAGE> 14
forth in reasonable detail the method of calculation and the facts upon which
such adjustment was made, which certificate shall be conclusive evidence of the
correctness of the matters set forth therein, and (ii) cause to be given to
each of the registered holders of the Warrant Certificates at such holder's
address appearing on the Warrant Register written notice of such adjustments by
first class mail, postage prepaid. Where appropriate, such notice may be given
in advance and included as a part of the notice required to be mailed under the
other provisions of this Section 16.
Pursuant to Sections 1, 6, 7 and 8, the Company shall cause written
notice of such later Distribution Date, such later Expiration Date, such Call
Price, Call Date and Call Terms and such Reduced Exercise Price and Reduced
Exercise Price Period, as the case may be, to be given as soon as practicable
to the Warrant Agent and to each of the registered holders of the Warrant
Certificates by first class mail, postage prepaid, at such holder's address
appearing on the Warrant Register. In addition to the written notice referred
to in the preceding sentence, the Company shall make a public announcement in a
daily morning newspaper of general circulation in New York City and in Chicago
of such earlier Distribution Date, such later Expiration Date, such Call Price,
Call Date and Call Terms and such Reduced Exercise Price and Reduced Exercise
Price Period, as the case may be, at least once a week for two successive weeks
prior to the implementation of such terms.
If:
(a) the Company shall declare any dividend payable in any
securities upon its shares of Stock or make any distribution (other than a cash
dividend) to the holders of its shares of Stock, or
(b) the Company shall offer to the holders of its shares of Stock
any additional shares of Stock or securities convertible into shares of Stock
or any right to subscribe thereto, or
(c) there shall be a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation, merger or sale of all
or substantially all of its property, assets and business as an entirety),
then the Company shall (i) cause written notice of such event to be filed with
the Warrant Agent and shall cause written notice of such event to be given to
each of the registered holders of the Warrant Certificates at such holder's
address appearing on the Warrant Register, by first class mail, postage
prepaid, and (ii) make a public announcement in a daily newspaper of general
circulation in New York City and in Chicago of such event, such giving of
notice and publication to be completed at least 10 calendar days (or 20
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<PAGE> 15
calendar days in any case specified in clause (c) above) prior to the date
fixed as a record date or the date of closing the transfer books for the
determination of the stockholders entitled to such dividend, distribution or
subscription rights, or for the determination of stockholders entitled to vote
on such proposed dissolution, liquidation or winding up. Such notice shall
specify such record date or the date of closing the transfer books, as the case
may be. The failure to give the notice required by this Section 16 or any
defect therein shall not affect the legality or validity of any distribution,
right, warrant, dissolution, liquidation or winding up or the vote upon or any
other action taken in connection therewith.
SECTION 17. Warrant Agent. The Company hereby appoints the
Warrant Agent as the Warrant Agent of the Company in respect of the Warrant
Certificates upon the terms and subject to the conditions herein set forth, and
the Warrant Agent hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in the Warrant
Certificates and by this Agreement, and such further powers and authority to
act on behalf of the Company as the Company may hereafter grant to or confer
upon it. All of the terms and provisions with respect to such powers and
authority contained in the Warrant Certificates are subject to and governed by
the terms and provisions hereof.
SECTION 18. Conditions of Warrant Agent's Obligations. The Warrant
Agent undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the holders of
Warrants, by their acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant
Certificates shall be taken as statements of the Company, and the Warrant Agent
assumes no responsibility for the correctness of any of the same except such as
describe the Warrant Agent or action taken or to be taken by it. Except as
herein otherwise provided, the Warrant Agent assumes no responsibility with
respect to the execution, delivery or distribution of the Warrant Certificates.
(b) The Warrant Agent shall not be responsible for any failure of
the Company to comply with any of the covenants contained in this Agreement or
in the Warrant Certificates to be complied with by the Company nor shall it at
any time be under any duty or responsibility to any holder of a Warrant to make
or cause to be made any adjustment in the Exercise Price or in the number of
Shares issuable upon exercise of any Warrant (except as instructed by the
Company), or to determine whether any facts exist which may require any such
adjustments, or with respect to the nature or extent of or method employed in
making any such adjustments when made.
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<PAGE> 16
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant Agent
shall incur no liability or responsibility to the Company or any holder of any
Warrant Certificate in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or the advice of
such counsel.
(d) The Warrant Agent shall incur no liability or responsibility
to the Company or to any holder of any Warrant Certificate for any action taken
in reliance on any notice, resolution, waiver, consent, order, certificate or
other paper, document or instrument believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent under this
Agreement, to reimburse the Warrant Agent upon demand for all expenses, taxes
and governmental charges and other charges of any kind and nature incurred by
the Warrant Agent in the performance of its duties under this Agreement and to
indemnify the Warrant Agent and save it harmless against any and all losses,
liabilities and expenses, including judgments, costs and reasonable counsel
fees, for anything done or omitted by the Warrant Agent arising out of or in
connection with this Agreement except as a result of its negligence or bad
faith.
(f) The Warrant Agent shall be under no obligation to institute
any action, suit or legal proceeding or to take any other action likely to
involve expense unless the Company or one or more registered holders of Warrant
Certificates shall furnish the Warrant Agent with reasonable security and
indemnity for any costs or expenses which may be incurred. All rights of
action under this Agreement or under any of the Warrants may be enforced by the
Warrant Agent without the possession of any of the Warrant Certificates or the
production thereof at any trial or other proceeding relative thereto, and any
such action, suit or proceeding instituted by the Warrant Agent shall be
brought in its name as Warrant Agent, and any recovery or judgment shall be for
the ratable benefit of the registered holders of the Warrants, as their
respective rights or interests may appear.
(g) The Warrant Agent, and any stockholder, director, officer or
employee thereof, may buy, sell or deal in any of the Warrants or other
securities of the Company or become pecuniarily interested in any transaction
in which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though they were not the
Warrant Agent under this Agreement, or a stockholder, director, officer or
employee of the Warrant Agent, as the case may be. Nothing herein shall
preclude the Warrant Agent from acting in any other capacity for the Company or
for any other legal entity.
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<PAGE> 17
(h) The Warrant Agent shall act hereunder solely as agent for the
Company, and its duties shall be determined solely by the provisions hereof.
The Warrant Agent shall not be liable for anything which it may or do or
refrain from doing in connection with this Agreement except for its own
negligence or bad faith.
(i) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably be
required by the Warrant Agent for the carrying out or performing of the
provisions of this Agreement.
(j) The Warrant Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Warrant Agent) or in respect of the
validity or execution of any Warrant Certificate (except its countersignature
thereof), nor shall the Warrant Agent by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of the
Shares to be issued pursuant to this Agreement or any Warrant Certificate or as
to whether the Shares will when issued be validly issued, fully paid and
nonassessable or as to the Exercise Price or the number of Shares issuable upon
exercise of any Warrant.
(k) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the Chief Executive Officer, the President, any Vice
President, the Treasurer, the Secretary or any Assistant Secretary of the
Company, and to apply to such officers for advice or instructions in connection
with its duties, and shall not be liable for any action taken or suffered to be
taken by it in good faith in accordance with instructions of any such officer
or in good faith reliance upon any statement signed by any one of such officers
of the Company with respect to any fact or matter (unless other evidence in
respect thereof is herein specifically prescribed) which may be deemed to be
conclusively proved and established by such signed statement.
SECTION 19. Resignation and Appointment of Successor Warrant
Agent.
(a) The Company agrees, for the benefit of the holders from time
to time of the Warrant Certificates, that at all times there shall be a Warrant
Agent hereunder until all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become
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<PAGE> 18
effective; provided that such date shall not be less than 60 days after the
date on which such notice is given unless the Company agrees to accept less
notice. The Warrant Agent may be removed at any time by the filing with it of
an instrument in writing signed by or on behalf of the Company and specifying
such removal and the date when it shall become effective. Such resignation or
removal shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a bank or trust company
organized and doing business under the laws of the United States of America or
of any State, in good standing, and authorized under such laws to exercise
corporate trust powers) and the acceptance of such appointment by such
successor Warrant Agent. Upon its resignation or removal, the Warrant Agent
shall be entitled to the payment by the Company of the compensation agreed to
under Section 18(e) hereof for, and to the reimbursement of all reasonable
out-of-pocket expenses incurred in connection with, the services rendered
hereunder by the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or shall file a petition seeking relief under the Federal Bankruptcy
Code, as now constituted or hereafter amended, or under any other applicable
federal or state bankruptcy law or similar law or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the Federal Bankruptcy Code, as now constituted or hereafter amended, or
under any other applicable federal or state bankruptcy or similar law or if any
public officer shall have taken charge or control of the Warrant Agent or of
its property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified in accordance with the terms
of this Agreement, shall be appointed by the Company by an instrument in
writing, filed with the successor Warrant Agent. Upon the appointment of a
successor Warrant Agent and acceptance by the latter of such appointment, the
Warrant Agent so superseded shall cease to be the Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to
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<PAGE> 19
transfer, deliver and pay over, and such successor Warrant Agent shall be
entitled to receive, all moneys, securities and other property on deposit with
or held by such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
SECTION 20. Warrantholder Not Deemed a Stockholder. Nothing
contained in this Agreement or in any of the Warrant Certificates shall be
construed as conferring upon the holders thereof the right to vote or to
receive dividends or to consent or to receive notice as stockholders in respect
of the meetings of stockholders or for the election of directors of the Company
or any other matter, or any rights whatsoever as stockholders of the Company.
SECTION 21. Delivery of Prospectus. If the Company is required under
applicable federal or state securities laws to deliver a prospectus upon
exercise of Warrants, the Company will furnish to the Warrant Agent sufficient
copies of a prospectus, and the Warrant Agent agrees that upon the exercise of
any Warrant Certificate by the holder thereof, the Warrant Agent will deliver
to such holder, prior to or concurrently with the delivery of the certificate
or certificates for the Shares issued upon such exercise, a copy of the
prospectus.
SECTION 22. Notices to Company and Warrant Agent. Any notice or
demand authorized by this Agreement to be given or made by the Warrant Agent or
by any registered holder of any Warrant Certificate to or on the Company shall
be sufficiently given or made if sent by mail, first class or registered,
postage prepaid, addressed (until another address is filed in writing by the
Company with the Warrant Agent), as follows:
Brunswick Corporation
1 N. Field Ct.
Lake Forest, Illinois 60045-4811
Attention: Corporate Secretary
If the Company shall fail to maintain such office or agency or shall
fail to give such notice of any change in the location thereof, presentation
may be made and notices and demands may be served at the principal office of
the Warrant Agent.
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<PAGE> 20
Any notice pursuant to this Agreement to be given by the Company or by
any registered holder of any Warrant Certificate to the Warrant Agent shall be
sufficiently given if sent by mail, first class or registered, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) to the Warrant Agent at the address set forth in the Warrant
Agreement.
SECTION 23. Supplements and Amendments. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement without the
approval of any holders of Warrant Certificates in order to designate Warrants
pursuant to Section 1, to cure any ambiguity, manifest error or other mistake
in this Agreement, or to correct or supplement any provision contained herein
that may be defective or inconsistent with any other provision herein, or to
make any other provisions in regard to matters or questions arising hereunder
that the Company and the Warrant Agent may deem necessary or desirable and that
shall not adversely affect, alter or change the interests of the holders of the
Warrant Certificates.
SECTION 24. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 25. Termination. This Agreement shall terminate at the close
of business on the Expiration Date. Notwithstanding the foregoing, this
Agreement will terminate on any earlier date when all Warrants have been
exercised. The provisions of Section 18 shall survive such termination.
SECTION 26. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company,
the Warrant Agent and the registered holders of the Warrant Certificates any
legal or equitable right, remedy or claim under this Agreement, and this
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent and the registered holders of the Warrant Certificates.
SECTION 27. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and such counterparts shall together constitute but
one and the same instrument.
SECTION 28. Headings. The headings of sections of this Agreement
have been inserted for convenience of reference only, are not to be considered
a part hereof and shall in no way modify or restrict any of the terms or
provisions hereof.
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<PAGE> 21
SECTION 29. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
SECTION 30. Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of New York and for all purposes shall be construed in
accordance with the laws of such State.
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<PAGE> 1
Exhibit 4.7
- --------------------------------------------------------------------------------
BRUNSWICK CORPORATION
STANDARD DEBT SECURITIES WARRANT
AGREEMENT PROVISIONS
______________ , 1996
- --------------------------------------------------------------------------------
<PAGE> 2
From time to time, Brunswick Corporation, a Delaware corporation (the
"Company"), may enter into one or more warrant agreements that provide for the
issuance and sale of warrants ("Warrants") to purchase debt securities of the
Company ("Debt Securities"). The standard provisions set forth herein may be
included or incorporated by reference in any such warrant agreement (a "Warrant
Agreement"). The Warrant Agreement, including the provisions incorporated
therein by reference, is herein referred to as this "Agreement." The person
named as the "Warrant Agent" in the first paragraph of the Warrant Agreement is
herein referred to as the "Warrant Agent." Unless otherwise defined in this
Agreement or in the Warrant Agreement, as the case may be, terms defined in the
Warrant Agreement are used herein as therein defined and terms defined herein
are used in the Warrant Agreement as herein defined.
SECTION 1. Number of Warrants Unlimited; Issuable from Time to Time.
The number of Warrants which may be issued and delivered under this Agreement
is unlimited.
There shall be established in or pursuant to a resolution of the Board
of Directors of the Company or established in one or more warrant agreements
supplemental hereto, prior to the issuance of any Warrants:
(a) the offering price,
(b) the designation and terms of such Warrants and the Debt
Securities purchasable upon exercise of such Warrants,
(c) the date on which the right to exercise such Warrants shall
commence or,
(d) if the Warrants are issued together as a unit with any other
securities of the Company, the date after which the Warrants
shall be freely tradeable separately from such other
securities (the "Distribution Date") and if the Company may at
its option or under circumstances described therein provide
for an earlier Distribution Date,
(e) the Expiration Date pursuant to Section 6,
(f) the Exercise Price and any form of consideration other than
lawful money of the United States of America by which the
Exercise Price may be paid pursuant to Section 6,
(g) the Call Price, Call Date and Call Terms pursuant to
Section 7,
<PAGE> 3
(h) the limitations, if any, upon the Reduced Exercise Price and
the Reduced Exercise Price Period pursuant to Section 8.
SECTION 2. Form of Warrant Certificates. The certificates evidencing
the Warrants (the "Warrant Certificates") to be delivered pursuant to this
Agreement shall be in registered form only. The Warrant Certificates shall be
in substantially such form or forms as shall be established by the Company from
time to time pursuant to one or more resolutions of the Board of Directors of
the Company or in one or more warrant agreements supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Agreement, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange or
as may, consistently herewith, be determined by the officers executing such
Warrants, as evidenced by their execution of the Warrants.
SECTION 3. Execution of Warrant Certificates. Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board, its
Chief Executive Officer, its President, a Vice President or its Treasurer and
attested by its Secretary or Assistant Secretary, under its corporate seal.
Each such signature upon the Warrant Certificates may be in the form of a
facsimile signature of the current or any future Chairman of the Board, Chief
Executive Officer, President, Vice President, Treasurer, Secretary or Assistant
Secretary and may be imprinted or otherwise reproduced on the Warrant
Certificates and for that purpose the Company may adopt and use the facsimile
signature of any person who shall have been Chairman of the Board, Chief
Executive Officer, President, Vice President, Treasurer, Secretary or Assistant
Secretary, notwithstanding the fact that at the time the Warrant Certificates
shall be countersigned and delivered or disposed of such person shall have
ceased to hold such office. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Warrant Certificates.
If any officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer before the Warrant Certificates so
signed shall have been countersigned by the Warrant Agent or disposed of by the
Company, such Warrant Certificates nevertheless may be countersigned and
delivered or disposed of as though such person had not ceased to be such
officer of the Company; and any Warrant Certificate may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date
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<PAGE> 4
of the execution of this Agreement any such person was not such officer.
SECTION 4. Registration and Countersignature. Warrant
Certificates shall be manually countersigned and dated the date of
countersignature by the Warrant Agent and shall not be valid for any purpose
unless so countersigned. The Warrants shall be numbered and shall be
registered in a register (the "Warrant Register") to be maintained by the
Warrant Agent.
The Company and the Warrant Agent may deem and treat the registered
holder of a Warrant Certificate as the absolute owner thereof (notwithstanding
any notation of ownership or other writing thereon made by anyone), for the
purpose of any exercise thereof or any distribution to the holder thereof and
for all other purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
SECTION 5. Registration of Transfers and Exchanges. The Warrant
Agent shall from time to time register the transfer of any outstanding Warrant
Certificates in the Warrant Register, upon surrender of such Warrant
Certificates, duly endorsed, and accompanied by a written instrument or
instruments of transfer in form satisfactory to the Warrant Agent, duly signed
by the registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, such signature to be
guaranteed by (a) a bank or trust company, (b) a broker or dealer that is a
member of the National Association of Securities Dealers, Inc. (the "NASD") or
(c) a member of a national securities exchange. Upon any such registration of
transfer, a new Warrant Certificate shall be issued to the transferee.
Warrant Certificates may be exchanged at the option of the holder or
holders thereof, when surrendered to the Warrant Agent at its offices or agency
maintained for the purpose of exchanging, transferring and exercising the
Warrants (a "Warrant Agent Office") or at the offices of any successor Warrant
Agent as provided in Section 16 hereof, for another Warrant Certificate or
other Warrant Certificates of like tenor representing in the aggregate a like
number of Warrants.
The Warrant Agent is hereby authorized to countersign, in accordance
with the provisions of this Section 5 and of Section 4, and deliver the new
Warrant Certificates required pursuant to the provisions of this Section.
No service charge shall be made for any exchange or registration of
transfer of Warrant Certificates, but the Company may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge that
may be imposed in connection with any such exchange or registration of
transfer. Whenever any
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<PAGE> 5
Warrant Certificates are surrendered for exchange or registration of transfer,
an authorized officer of the Warrant Agent shall mutually countersign and
deliver to the person or persons entitled thereto a Warrant Certificate or
Warrant Certificates duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not be required to effect any exchange or
registration of transfer that will result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant or a number of full Warrants and
a fraction of a Warrant. All Warrant Certificates issued upon any exchange or
registration of transfer of Warrant Certificates shall be the valid obligations
of the Company, evidencing the same obligations and entitled to the same
benefits under this Agreement as the Warrant Certificates surrendered for such
exchange or registration of transfer.
SECTION 6. Duration and Exercise of Warrants.
(a) The Warrants shall expire on (i) the close of business on
the date set forth pursuant to Section 1, or (ii) such later date as shall be
determined in the sole discretion of the Company, in a written statement to the
Warrant Agent and with notice to registered holders of Warrants in the manner
provided for in Section 13 (such date of expiration being herein referred to as
the "Expiration Date"). On and after the Distribution Date, each Warrant may
be exercised on any business day on or prior to the close of business on the
Expiration Date. After the close of business on the Expiration Date, the
Warrants will become void and of no value.
(b) Subject to the provisions of this Agreement, the holder of
each Warrant shall have the right to purchase from the Company (and the Company
shall issue and sell to such holder of a Warrant) Debt Securities at the price
set forth pursuant to Section 1 (such price being the "Exercise Price") upon
depositing with the Warrant Agent at a Warrant Agent Office the Warrant
Certificate evidencing such Warrant, with the form of election to purchase on
the reverse thereof duly completed and signed by the registered holder or
holders thereof or by the duly appointed legal representative thereof or by a
duly authorized attorney, such signature to be guaranteed by a bank or trust
company, by a broker or dealer which is a member of NASD or by a member of a
national securities exchange, and upon payment of the Exercise Price for the
number of Shares in respect of which such Warrant are being exercised. Unless
otherwise provided pursuant to Section 1, payment of the aggregate Exercise
Price shall be made in lawful money of the United States of America. If the
Warrant Agent receives moneys in payment of the purchase price for Warrants,
the Warrant Agent shall deposit all funds received by it in the account of the
Company maintained with it for such purpose. If the Warrant Agent receives
consideration other than moneys for Warrants, the Warrant Agent shall deliver
such consideration directly to the Company. In
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<PAGE> 6
either case, the Warrant Agent shall advise the Company by telex or telecopy at
the end of each day as to the Warrant Certificates that have been exercised and
the amount of moneys deposited to its account or the type and amount of other
consideration to be delivered to it.
(c) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the Trustee of (i) the number of Warrants
exercised, (ii) the instructions of each holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the Debt Securities to
which such holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining after
such exercise and (iv) such other information as the Company or the Trustee
shall reasonably require.
(d) A Warrant Certificate may be exercised in part to purchase
Debt Securities only in the denominations authorized pursuant to the indenture
under which the Debt Securities are issued (the "Indenture").
(e) Subject to Section 10, upon such surrender of a Warrant
Certificate and as soon as practicable after receipt of payment of the Exercise
Price and the Warrant Certificate properly completed and duly executed at a
Warrant Agent Office of the Warrant Agent, the Company shall issue, pursuant to
the Indenture, to or upon the order of the holder of such Warrant Certificate,
the Debt Securities in authorized denominations to which such holder is
entitled, in fully registered form in such name or names as may be directed by
such holder. The Warrants evidenced by a Warrant Certificate shall be
exercisable, at the election of the registered holder thereof, either as an
entirety or from time to time for a portion of the number of Warrants specified
in the Warrant Certificate. If less than all of the Warrants evidenced by a
Warrant Certificate surrendered upon the exercise of Warrants are exercised at
any time prior to the date of expiration for the Warrants and if sufficient
time remains prior to the Expiration Date, a new Warrant Certificate or
Certificates shall be issued for the remaining number of Warrants evidenced by
the Warrant Certificate so surrendered, and the Warrant Agent is hereby
authorized to countersign the required new Warrant Certificate or Certificates
pursuant to the provisions of Section 5 and this Section 6.
SECTION 7. Call of Warrants by the Company. If so provided in
the Warrant Agreement, the Company shall have the right to call and repurchase
any or all Warrants at the price (the "Call Price") and on or after the date
(the "Call Date") and upon the terms (the "Call Terms") as shall be set forth
pursuant to Section 1. Notice of such Call Price, Call Date and Call Terms
shall be
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<PAGE> 7
given to registered holders of Warrants in the manner provided in Section 13.
SECTION 8. Optional Reduction of Exercise Price. Subject to the
limits, if any, set forth pursuant to Section 1, the Company shall have the
right, at any time or from time to time, voluntarily to reduce the then current
Exercise Price to such amount (the "Reduced Exercise Price") and for such
period or periods of time, which may be through the close of business on the
Expiration Date (the "Reduced Exercise Price Period"), as may be deemed
appropriate by the Company. Notice of any such Reduced Exercise Price and
Reduced Exercise Price Period shall be given to registered holders of Warrants
in the manner provided in Section 13. After the termination of the Reduced
Exercise Price Period, the Exercise Price shall be such Exercise Price that
would have been in effect had there been no reduction in the Exercise Price
pursuant to the provisions of this Section 8.
SECTION 9. Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exercise, registration of transfer or exchange
shall, if surrendered to the Company, be delivered to the Warrant Agent, and
all Warrant Certificates surrendered or so delivered to the Warrant Agent shall
be promptly canceled by the Warrant Agent and shall not be reissued and, except
as expressly permitted by this Agreement, no Warrant Certificate shall be
issued hereunder in lieu thereof. The Warrant Agent shall deliver to the
Company from time to time, or otherwise dispose of, canceled Warrant
Certificates in a manner satisfactory to the Company.
SECTION 10. Payment of Taxes. The Company will pay all
documentary stamp taxes attributable to the initial issuance of Warrants and
of Debt Securities upon the exercise of Warrants; provided, however, that the
Company shall not be required to pay any tax or taxes which may be payable in
respect of any transfer involved in the issue of any Warrant Certificates or any
certificates for Debt Securities in a name other than the registered holder of
a Warrant Certificate surrendered upon the exercise of a Warrant, and the
Company shall not be required to issue or deliver such certificates unless or
until the person or persons requesting the issuance thereof shall have paid to
the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
SECTION 11. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Company and the Warrant Agent of evidence
reasonably satisfactory to them of the ownership and the loss, theft,
destruction or mutilation of the Warrant Certificate, and of indemnity
reasonably satisfactory to them, and, in the case of mutilation, upon surrender
thereof to the Warrant Agent for cancellation, then, in the absence of notice
to the Company or the
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<PAGE> 8
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of the
lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant
Certificate of the same tenor and for a like number of Warrants. Upon the
issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expense (including
the fees and expenses of the Warrant Agent) in connection therewith. Every
substitute Warrant Certificate executed and delivered pursuant to this Section
in lieu of any lost, stolen or destroyed Warrant Certificate shall constitute
an additional contractual obligation of the Company, whether or not the lost,
stolen or destroyed Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. The provisions of this Section are exclusive and shall
preclude (to the extent lawful) any and all other rights or remedies with
respect to the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
SECTION 12. Obtaining of Governmental Approvals. The Company
will from time to time take all action that may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under federal and state laws, which
may be or become requisite in connection with the issuance, sale, transfer and
delivery of the Warrant Certificates, the exercise of the Warrants, and the
issuance, sale, transfer and delivery of the Debt Securities issued upon
exercise of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 13. Notices to Warrantholders. Pursuant to Sections 1, 6,
7 and 8, the Company shall cause written notice of such later Distribution Date,
such later Expiration Date, such Call Price, Call Date and Call Terms and such
Reduced Exercise Price and Reduced Exercise Price Period, as the case may be, to
be given as soon as practicable to the Warrant Agent and to each of the
registered holders of the Warrant Certificates by first class mail, postage
prepaid, at such holder's address appearing on the Warrant Register. In
addition to the written notice referred to in the preceding sentence, the
Company shall make a public announcement in a daily morning newspaper of general
circulation in New York City and in Chicago of such earlier Distribution Date,
such later Expiration Date, such Call Price, Call Date and Call Terms and such
Reduced Exercise Price and Reduced Exercise Period, as the case may be, at least
once a week for two successive weeks prior to the implementation of such terms.
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<PAGE> 9
SECTION 14. Warrant Agent. The Company hereby appoints the
Warrant Agent as the Warrant Agent of the Company in respect of the Warrant
Certificates upon the terms and subject to the conditions herein set forth, and
the Warrant Agent hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in the Warrant
Certificates and by this Agreement, and such further powers and authority to
act on behalf of the Company as the Company may hereafter grant to or confer
upon it. All of the terms and provisions with respect to such powers and
authority contained in the Warrant Certificates are subject to and governed by
the terms and provisions hereof.
SECTION 15. Conditions of Warrant Agent's Obligations. The
Warrant Agent undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, by all of which the Company and the
holders of Warrants, by their acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant
Certificates shall be taken as statements of the Company, and the Warrant Agent
assumes no responsibility for the correctness of any of the same except such as
describe the Warrant Agent or action taken or to be taken by it. Except as
herein otherwise provided, the Warrant Agent assumes no responsibility with
respect to the execution, delivery or distribution of the Warrant Certificates.
(b) The Warrant Agent shall have no duty or responsibility in case
of any default by the Company in the performance of its covenants or agreements
contained in the Warrant Certificates or the Indenture or in the case of the
receipt of any written demand from a holder of a Warrant Certificate with
respect to such default, including any duty or responsibility to initiate or
attempt to initiate any proceedings at law or otherwise or to make any demand
upon the Company.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant Agent
shall incur no liability or responsibility to the Company or any holder of any
Warrant Certificate in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or the advice of
such counsel.
(d) The Warrant Agent shall incur no liability or responsibility
to the Company or to any holder of any Warrant Certificate for any action taken
in reliance on any notice, resolution, waiver, consent, order, certificate or
other paper, document or instrument believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent under
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<PAGE> 10
this Agreement, to reimburse the Warrant Agent upon demand for all expenses,
taxes and governmental charges and other charges of any kind and nature
incurred by the Warrant Agent in the performance of its duties under this
Agreement and to indemnify the Warrant Agent and save it harmless against any
and all losses, liabilities and expenses, including judgments, costs and
reasonable counsel fees, for anything done or omitted by the Warrant Agent
arising out of or in connection with this Agreement except as a result of its
negligence or bad faith.
(f) The Warrant Agent shall be under no obligation to institute
any action, suit or legal proceeding or to take any other action likely to
involve expense unless the Company or one or more registered holders of Warrant
Certificates shall furnish the Warrant Agent with reasonable security and
indemnity for any costs or expenses which may be incurred. All rights of
action under this Agreement or under any of the Warrants may be enforced by the
Warrant Agent without the possession of any of the Warrant Certificates or the
production thereof at any trial or other proceeding relative thereto, and any
such action, suit or proceeding instituted by the Warrant Agent shall be
brought in its name as Warrant Agent, and any recovery or judgment shall be for
the ratable benefit of the registered holders of the Warrants, as their
respective rights or interests may appear.
(g) The Warrant Agent and its officers, directors and employees
may act as Trustee under the Indenture and may become the owner of, or acquire
any interest in, any Warrant Certificates, with the same rights that it or they
would have if it were not the Warrant Agent hereunder, and, to the extent
permitted by applicable law, they may engage or be interested in any financial
or other transaction with the Company and may act on, or as depositary, trustee
or agent for, any committee or body of holders of the Debt Securities or other
obligations of the Company as freely as if it were not the Warrant Agent.
Nothing herein shall preclude the Warrant Agent from acting in any other
capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the
Company, and its duties shall be determined solely by the provisions hereof.
The Warrant Agent shall not be liable for anything which it may or do or
refrain from doing in connection with this Agreement except for its own
negligence or bad faith.
(i) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably be
required by the Warrant Agent for the carrying out or performing of the
provisions of this Agreement.
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<PAGE> 11
(j) The Warrant Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Warrant Agent) or in respect of the
validity or execution of any Warrant Certificate (except its countersignature
thereof).
(k) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the Chief Executive Officer, the President, any Vice
President, the Treasurer, the Secretary or any Assistant Secretary of the
Company, and to apply to such officers for advice or instructions in connection
with its duties, and shall not be liable for any action taken or suffered to be
taken by it in good faith in accordance with instructions of any such officer
or in good faith reliance upon any statement signed by any one of such officers
of the Company with respect to any fact or matter (unless other evidence in
respect thereof is herein specifically prescribed) which may be deemed to be
conclusively proved and established by such signed statement.
(l) Except as set forth in the Warrant Agreement, the Warrant
Agent shall not be under any liability for interest on any moneys or other
consideration at any time received by it pursuant to any of the provisions of
this Agreement or of the Warrant Certificates.
SECTION 16. Resignation and Appointment of Successor Warrant
Agent.
(a) The Company agrees, for the benefit of the holders from time
to time of the Warrant Certificates, that at all times there shall be a Warrant
Agent hereunder until all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that
such date shall not be less than 60 days after the date on which such notice is
given unless the Company agrees to accept less notice. The Warrant Agent may
be removed at any time by the filing with it of an instrument in writing signed
by or on behalf of the Company and specifying such removal and the date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company organized and doing business
under the laws of the United States of America or of any State, in good
standing, and authorized under such laws to exercise corporate trust powers)
and the acceptance of such appointment by such successor Warrant Agent. Upon
its resignation or removal, the Warrant Agent shall be entitled to the payment
by the Company of the compensation agreed to under Section 15(e) hereof for,
and to the reimbursement of all
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<PAGE> 12
reasonable out-of-pocket expenses incurred in connection with, the services
rendered hereunder by the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or shall file a petition seeking relief under the Federal Bankruptcy
Code, as now constituted or hereafter amended, or under any other applicable
federal or state bankruptcy law or similar law or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the Federal Bankruptcy Code, as now constituted or hereafter amended, or
under any other applicable federal or state bankruptcy or similar law or if any
public officer shall have taken charge or control of the Warrant Agent or of
its property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified in accordance with the terms
of this Agreement, shall be appointed by the Company by an instrument in
writing, filed with the successor Warrant Agent. Upon the appointment of a
successor Warrant Agent and acceptance by the latter of such appointment, the
Warrant Agent so superseded shall cease to be the Warrant Agent hereunder.
(d) Any successor warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay
over, and such successor Warrant Agent shall be entitled to receive, all
moneys, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
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<PAGE> 13
SECTION 17. No Rights as Securityholders Conferred by Warrant
Certificates. No Warrant Certificate shall entitle the holder thereof to any
of the rights of a holder of Debt Securities, including the right to receive
the payment of principal of, or interest on, the Debt Securities or to enforce
any of the covenants of the Debt Securities or the Indenture except as
otherwise provided in the Indenture.
SECTION 18. Delivery of Prospectus. If the Company is required
under applicable federal or state securities laws to deliver a prospectus upon
exercise of Warrants, the Company will furnish to the Warrant Agent sufficient
copies of a prospectus, and the Warrant Agent agrees that upon the exercise of
any Warrant Certificate by the holder thereof, the Warrant Agent will deliver
to such holder, prior to or concurrently with the delivery of the Debt
Securities issued upon such exercise, a copy of the prospectus.
SECTION 19. Notices to Company and Warrant Agent. Any notice or
demand authorized by this Agreement to be given or made by the Warrant Agent or
by any registered holder of any Warrant Certificate to or on the Company shall
be sufficiently given or made if sent by mail, first class or registered,
postage prepaid, addressed (until another address is filed in writing by the
Company with the Warrant Agent), as follows:
Brunswick Corporation
1 N. Field Ct.
Lake Forest, Illinois 60045-4811
Attention: Corporate Secretary
If the Company shall fail to maintain such office or agency or shall
fail to give such notice of any change in the location thereof, presentation
may be made and notices and demands may be served at the principal office of
the Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by
any registered holder of any Warrant Certificate to the Warrant Agent shall be
sufficiently given if sent by mail, first class or registered, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) to the Warrant Agent at the address set forth in the Warrant
Agreement.
SECTION 20. Supplements and Amendments. The Company and the
Warrant Agent may from time to time supplement or amend this Agreement without
the approval of any holders of Warrant Certificates in order to designate
Warrants pursuant to Section 1, to cure any ambiguity, manifest error or other
mistake in this Agreement, or to correct or supplement any provision contained
herein that may be defective or inconsistent with any other
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<PAGE> 14
provision herein, or to make any other provisions in regard to matters or
questions arising hereunder that the Company and the Warrant Agent may deem
necessary or desirable and that shall not adversely affect, alter or change the
interests of the holders of the Warrant Certificates.
SECTION 21. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 22. Termination. This Agreement shall terminate at the
close of business on the Expiration Date. Notwithstanding the foregoing, this
Agreement will terminate on any earlier date when all Warrants have been
exercised. The provisions of Section 15 shall survive such termination.
SECTION 23. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company,
the Warrant Agent and the registered holders of the Warrant Certificates any
legal or equitable right, remedy or claim under this Agreement, and this
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent and the registered holders of the Warrant Certificates.
SECTION 24. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and such counterparts shall together constitute but
one and the same instrument.
SECTION 25. Headings. The headings of sections of this Agreement
have been inserted for convenience of reference only, are not to be considered
a part hereof and shall in no way modify or restrict any of the terms or
provisions hereof.
SECTION 26. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
SECTION 27. Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of New York and for all purposes shall be construed in
accordance with the laws of such State.
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<PAGE> 1
Exhibit 4.8
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE
This INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE (this
"Instrument"), dated as of May 16, 1996 (the "Execution Date"), by and among
Brunswick Corporation, a corporation duly organized and existing under the laws
of the State of Delaware (the "Corporation"), First Trust of Illinois, National
Association (as the successor to Bank of America Illinois, formerly known as
Continental Illinois National Bank and Trust Company of Chicago), an Illinois
state banking corporation (the "Resigning Trustee") and Harris Trust and
Savings Bank, an Illinois state banking corporation (the "Successor Trustee").
WHEREAS, the Corporation and the Resigning Trustee entered into an
indenture, dated as of March 15, 1987 (the "Indenture"), providing for the
issuance by the Corporation from time to time of its unsecured debentures,
notes and/or other evidences of indebtedness (the "Securities"); and
WHEREAS, the Resigning Trustee has been acting as trustee, paying
agent, authenticating agent and registrar under the Indenture; and
WHEREAS, Section 8.10(a) of the Indenture provides that the Trustee
may resign and be discharged of the trust created by the Indenture by giving
written notice thereof to the Corporation and by mailing notice thereof to the
holders of the Securities; and
WHEREAS, the Resigning Trustee hereby gives notice to the Corporation
of its resignation to become effective upon the acceptance of appointment by a
successor trustee; and
WHEREAS, Section 8.10 of the Indenture provides that in case the
trustee shall resign, the Corporation shall promptly appoint a successor
trustee by a written instrument executed by order of the Board of Directors;
and
WHEREAS, Section 8.11 of the Indenture provides that a successor
trustee shall be qualified under the provisions of Section 8.09 of the
Indenture; and
WHEREAS, Section 8.11 of the Indenture provides that any successor
trustee appointed under the Indenture shall execute, acknowledge and deliver to
the Corporation and to its predecessor trustee an instrument accepting such
appointment and thereupon the resignation of the Resigning Trustee shall become
effective and the Successor Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights,
<PAGE> 2
powers, duties and obligations of the Resigning Trustee with like effect, as if
originally named trustee; and
NOW, THEREFORE, pursuant to the Indenture and in consideration of the
covenants herein contained, it is agreed as follows (words and phrases not
otherwise defined in this Instrument shall have the meaning given hereto in the
Indenture):
THE RESIGNING TRUSTEE
1. Pursuant to the terms of the Indenture, the Resigning Trustee
hereby notifies the Corporation that the Resigning Trustee is resigning as
trustee under the Indenture effective as of May 22, 1996 (the "Effective
Date").
2. Effective as of the Effective Date, the Resigning Trustee
hereby assigns, transfers, delivers and confirms to the Successor Trustee all
of its rights, powers, duties and obligations of the Resigning Trustee under
the Indenture.
3. The Resigning Trustee agrees to execute and deliver such
further instruments and shall take such further actions as the Successor
Trustee or the Corporation may reasonably request so as to more fully and
certainly vest and confirm in the Successor Trustee all the rights, titles,
interests, capacities, privileges, duties and responsibilities hereby assigned,
transferred, delivered and confirmed to the Successor Trustee, including
without limitation, the execution and delivery of any instruments required to
be re-perfect all liens that it may have on the trust in the name of the
Successor Trustee.
4. Promptly after the execution and delivery of this Instrument,
the Resigning Trustee shall cause notice of the resignation, appointment and
acceptance effected hereby to be given as is required pursuant to Section
8.10(a) of the Indenture.
5. Promptly after the Effective Date, the Resigning Trustee shall
provide the governing documents to the Successor Trustee.
THE CORPORATION
1. Effective as of the Effective Date, the Corporation hereby
accepts the resignation of the Resigning Trustee and appoints the Successor
Trustee as successor in trust under the Indenture and confirms to the Successor
Trustee all of the rights, powers, duties and obligations of the trustee under
the Indenture.
2. The Corporation agrees to execute and deliver such further
instruments and to take such further action as the Successor Trustee may
reasonably request so as to more fully and
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<PAGE> 3
certainly vest and confirm in the Successor Trustee all the rights, powers,
duties and obligations hereby assigned, transferred, delivered and confirmed to
the Successor Trustee.
3. The Corporation hereby represents and warrants that to the
best knowledge of the Corporation there has been no notice of an Event of
Default and no event which, after notice or lapse of time or both, would become
an Event of Default under the terms of the Indenture, as of the Effective Date.
THE SUCCESSOR TRUSTEE
1. Effective as of the Effective Date, the Successor Trustee
hereby accepts its appointment as successor trustee under the Indenture and
shall be vested with all of the rights, powers, duties and obligations of the
trustee under the Indenture.
2. The Successor Trustee hereby represents that it is qualified
and eligible under the provisions of Section 8.09 of the Indenture to be
appointed successor trustee and hereby accepts the appointment as successor
trustee and agrees that upon the signing of this Instrument it shall become
vested with all of the rights, powers, duties and obligations of the Resigning
Trustee as trustee with respect to all series of Securities with like effect as
if originally named as trustee under the Indenture.
3. The Successor Trustee shall perform such functions as paying
agent, registrar and transfer agent pursuant to the terms of the Indenture at
its Corporate Trust Office in Chicago, Illinois, where notices and demands to
or upon the Corporation in respect of the Securities or the Indenture may be
served, or the Securities may be presented or surrendered for payment and where
the Securities may be surrendered for exchange or registration of transfer.
MISCELLANEOUS
1. (a) Notwithstanding the resignation of the Resigning
Trustee as trustee under the Indenture, the Company shall remain obligated
under the Indenture to compensate, reimburse and indemnify the Resigning
Trustee in connection with its trusteeship under the Indenture prior to the
date hereof pursuant to the terms of the Indenture.
(b) The Resigning Trustee agrees to indemnify and save
the Successor Trustee harmless against any and all costs, claims liabilities,
expenses, losses or damages whatsoever (including all reasonable fees, expenses
and disbursements of counsel, auditors or other agents or expert(s), which the
Successor Trustee may suffer or incur at any time or times as a result of the
Successor Trustee's accepting the appointment and acting as
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<PAGE> 4
successor trustee under the Indenture which may arise out of the Resigning
Trustee's willful misconduct, bad faith or negligence during the term of its
trusteeship, as determined on the basis of the provisions contained in the
Indenture.
(c) The Successor Trustee agrees to indemnify and save
the Resigning Trustee harmless from and against any and all costs, claims,
liabilities, expenses, losses or damages whatsoever (including all reasonable
fees, expenses and disbursements and the reasonable fees, expenses and
disbursements of counsel and agents), incurred by the Resigning Trustee which
may arise out of the Successor Trustee's willful misconduct, bad faith or
negligence during the term of its trusteeship as determined on the basis of the
provisions contained in the Indenture.
2. The parties hereto agree that as of the Effective Date, all
references to the Resigning Trustee as trustee in the Indenture shall be deemed
to refer to the Successor Trustee. After the Effective Date, all notices or
payments which were required by the terms of the Indenture to be given or paid
to the Resigning Trustee, as trustee, shall be given or paid to:
HARRIS TRUST AND SAVINGS BANK
311 West Monroe Street
Attention: Indenture Trust Division
Chicago, Illinois 60606
3. The resignation, appointment and acceptance effected hereby
shall become effective as of the opening of business on the Effective Date.
4. This Instrument shall be governed by and construed in
accordance with the laws governing the Indenture.
5. This Instrument may be executed in any number of counterparts,
each of which shall be an original, but which counterparts shall together
constitute but one and the same instrument.
6. Nothing contained in this Instrument shall in any way affect
the obligations or rights of the Corporation, the Resigning Trustee or any
holder of the Securities under the Indenture. This Instrument shall be binding
upon and inure to the benefit of the Corporation, the Resigning Trustee, the
Successor Trustee and their respective successors and assigns.
7. The parties hereby agree that from and after the Effective
Date, all fees payable by the Corporation to the trustee under the Indenture
shall henceforth be invoiced by and paid to the Successor Trustee at such
address and account as
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<PAGE> 5
shall hereafter be provided by the Successor Trustee to the Corporation.
8. Each of the parties hereto hereby represents and warrants for
itself that as of the date hereof, the Effective Date:
a) it has the power and authority to execute and deliver this
Instrument and to perform its obligations hereunder, and all
such action has been duly and validly authorized by all
necessary proceedings on its part; and
b) this Instrument has been duly authorized, executed and
delivered by it, and constitute a legal, valid and binding
agreement enforceable against it in accordance with its terms,
except as the enforceability of this Instrument may be limited
by bankruptcy, insolvency or other similar laws of general
application affecting the enforcement of creditor's rights or
by general principles of equity limiting the availability of
equitable remedies.
IN WITNESS WHEREOF, the parties hereto have caused this Instrument to
be duly executed and attested by their duly authorized officers, all as of the
date and year first above written.
BRUNSWICK CORPORATION,
as Corporation
By: /s/ Richard S. O'Brien
-------------------------------------
Attest: Title: Vice President
----------------------------------
/s/ Michael D. Schmitz
- ----------------------
Assistant Secretary
FIRST TRUST OF ILLINOIS,
as Resigning Trustee
By: /s/ E.D. Butler
-------------------------------------
Attest: Title: Vice President
----------------------------------
/s/ Patricia M. Trluk
- ---------------------
Assistant Secretary
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<PAGE> 6
HARRIS TRUST AND SAVINGS BANK,
as Successor Trustee
By: /s/ J. Bartolini
-------------------------------------
Attest: Title: Vice President
----------------------------------
/s/ D.G. Donovan
- -------------------
Assistant Secretary
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<PAGE> 7
NOTICE TO THE HOLDERS
OF
BRUNSWICK CORPORATION
$100,000,000 8 1/8% NOTES
DUE 1997, CUSIP 117043AD1
Notice is hereby given pursuant to Section 8.10 of the Indenture dated as of
March 15, 1987 between Brunswick Corporation (the "Issuer") and First Trust of
Illinois, National Association, successor to Bank of America Illinois (the
"Trustee") that the Trustee has resigned and the Issuer has appointed Harris
Trust and Savings Bank as Successor Trustee (the "Successor Trustee") pursuant
to Section 8.10 of the Indenture effective May 22, 1996.
First Trust of Illinois, National Association will cease to act as Trustee and
Registrar on the Notes. Inquiries regarding the above issue should continue to
be forwarded to the Issuer.
The address and telephone number of the Successor Trustee is as follows:
Harris Trust and Savings Bank
311 West Monroe
Chicago, IL 60606
Attn: Indenture Trust Administration
(312) 461-2908
By First Trust of Illinois, National Association, resigning Trustee
This notice is given for informational purposes only. No action is required to
be taken by the bondholders.
<PAGE> 8
NOTICE TO THE HOLDERS
OF
BRUNSWICK CORPORATION
$125,000,000 7 3/8% NOTES
DUE 2023, CUSIP 117043AE9
Notice is hereby given pursuant to Section 8.10 of the Indenture dated as of
March 15, 1987 between Brunswick Corporation (the "Issuer") and First Trust of
Illinois, National Association, successor to Bank of America Illinois (the
"Trustee") that the Trustee has resigned and the Issuer has appointed Harris
Trust and Savings Bank as Successor Trustee (the "Successor Trustee") pursuant
to Section 8.10 of the Indenture effective May 22, 1996.
First Trust of Illinois, National Association will cease to act as Trustee,
Registrar and Transfer Agent on the Debentures. Inquiries regarding
registration and transfer should be directed to Harris Trust and Savings Bank
at the address provided below.
The address and telephone number of the Successor Trustee is as follows:
Harris Trust and Savings Bank
311 West Monroe
Chicago, IL 60606
Attn: Indenture Trust Administration
(312) 461-2908
By First Trust of Illinois, National Association, resigning Trustee
This notice is given for informational purposes only. No action is required to
be taken by the bondholders.
<PAGE> 1
Exhibit 5.1
MAYER, BROWN & PLATT
190 SOUTH LASALLE STREET
CHICAGO, ILLINOIS 60603
August 12, 1996
Brunswick Corporation
1 N. Field Ct.
Lake Forest, Illinois 60045
Ladies and Gentlemen:
We have acted as special counsel to Brunswick Corporation, a Delaware
corporation (the "Company"), in connection with the corporate proceedings (the
"Corporate Proceedings") taken and to be taken relating to the public offering
of the following securities (the "Securities") of the Company having an
aggregate initial offering price of up to $600,000,000: (i) common stock, par
value $.75 per share (the "Common Stock"), of the Company, (ii) preferred
stock, par value $.75 per share (the "Preferred Stock"), of the Company, (iii)
depositary shares evidenced by depositary receipts and representing shares of
Preferred Stock (the "Depositary Shares"), (iv) debt securities (the "Debt
Securities") and (v) warrants to purchase Common Stock, Preferred Stock or Debt
Securities (collectively the "Warrants") of the Company.
The Debt Securities are to be issued under an indenture, dated as of
March 15, 1987 (the "Indenture"), between the Company and Harris Trust and
Savings Bank, as successor to First Trust of Illinois, National Association (as
the successor to Bank of America Illinois, formerly known as Continental
Illinois National Bank and Trust Company of Chicago), as Trustee. The Preferred
Stock is to be issued under the Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), of the Company and a certificate of
designations (a "Certificate of Designations") to be approved by the Board of
Directors of the Company or a committee thereof and filed with the Secretary of
State of the State of Delaware (the "Delaware Secretary of State") pursuant to
Section 151 of the General Corporation Law of the State of Delaware. The
Depositary Shares are to be issued under a deposit agreement (the "Deposit
Agreement") to be entered into between the Company and a depositary to be named
by the Company. The Common Stock is to be issued under the Certificate of
Incorporation. The Warrants are to be issued under one or more warrant
agreements (each, a "Warrant Agreement") to be entered into between the Company
and warrant agents to be named by the Company.
<PAGE> 2
Brunswick Corporation
August 12, 1996
Page 2
Certain terms of the Securities to be issued by the Company from time
to time will be approved by the Board of Directors of the Company or a
committee thereof as part of the Corporate Proceedings in connection with the
issuance of the Securities. We have examined or are otherwise familiar with
the Certificate of Incorporation, the By-Laws of the Company, as amended, the
Company's Registration Statement on Form S-3 (the "Registration Statement")
pursuant to which the Securities are to be registered under the Securities Act
of 1933, as amended, the Corporate Proceedings and such other documents,
records and instruments as we have deemed necessary or appropriate for the
purposes of this opinion.
Based on the foregoing, we are of the opinion that: (i) the Indenture
has been duly authorized, executed and delivered by the Company and, assuming
due authorization, execution and delivery by the Trustee, constitutes a valid
and binding instrument of the Company, enforceable against the Company in
accordance with its terms, and the Debt Securities issuable thereunder will be
legal, valid and binding obligations of the Company, entitled to the benefits
of the Indenture; (ii) upon the execution and delivery of the Deposit
Agreement and the applicable Warrant Agreement, the completion of all
Corporate Proceedings, the execution, authentication, issuance and delivery of
the Depositary Shares and the Warrants and the payment therefor, respectively,
pursuant to such agreements, such Deposit Agreement or Warrant Agreement, as
the case may be, will become a valid and binding instrument of the Company,
enforceable against the Company in accordance with its respective terms, and
the Securities issuable thereunder will be legal, valid and binding obligations
of the Company, entitled to the benefits of the Deposit Agreement or the
applicable Warrant Agreement, respectively; (iii) upon the authorization,
execution, delivery and filing with, and recording by, the Delaware Secretary
of State of the Certificate of Designations, the completion of all Corporate
Proceedings, the execution, authentication, issuance and delivery of the
Preferred Stock and payment therefor pursuant to such Certificate of
Designations, the Preferred Stock will be duly and validly authorized and
issued, fully paid and non-assessable; and (iv) upon the authorization of
issuance of the Common Stock, the completion of all Corporate Proceedings, the
execution, authentication, issuance and delivery of the Common Stock and
payment therefor, the Common Stock will be duly and validly authorized and
issued, fully paid and non-assessable; including in each case such terms for
such Securities as are established pursuant to the Corporate Proceedings in
accordance with the respective terms thereof; and, except in each case as
enforcement of provisions of such instruments and agreements may be limited by
bankruptcy or other laws of general application affecting the enforcement of
creditors' rights and by general equity principles.
<PAGE> 3
Brunswick Corporation
August 12, 1996
Page 3
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to being named in the Prospectus relating thereto
under the caption "Legal Opinions" with respect to the matters stated therein.
Very truly yours,
MAYER, BROWN & PLATT
<PAGE> 1
EXHIBIT 12.1
BRUNSWICK CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN MILLIONS)
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
-------- --------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
EARNINGS AS ADJUSTED
Earnings from continuing operations
before extraordinary item and
cumulative effect of accounting
changes . . . . . . . . . . . . . 116.2 77.3 134.2 129.0 54.5 39.7 (35.0)
Income tax provision . . . . . . . . 69.7 44.4 73.9 69.4 32.0 22.3 (5.5)
Interest expense . . . . . . . . . . 16.0 15.9 32.5 28.5 27.2 29.9 32.0
Interest portion of rent expense . . 3.6 3.6 7.2 7.1 7.5 7.5 8.0
Equity in earnings of less-than 50%
owned affiliates . . . . . . . . . 0.0 0.0 0.1 0.0 0.2 0.2 0.1
Dividends received from less-than
50% owned affiliates . . . . . . . 0.0 0.0 0.0 0.0 0.0 0.0 0.0
----- ----- ----- ----- ----- ---- -----
205.5 141.2 247.9 234.0 121.4 99.6 (0.4)
===== ===== ===== ===== ===== ==== =====
FIXED CHARGES
Interest expense . . . . . . . . . . 16.0 15.9 32.5 28.5 27.2 29.9 32.0
Interest portion of rent expense . . 3.6 3.6 7.2 7.1 7.5 7.5 8.0
Capitalized interest . . . . . . . . 0.0 0.0 0.0 0.0 0.4 0.8 0.0
---- ---- ---- ---- ---- ---- ----
19.6 19.5 39.7 35.6 35.1 38.2 40.0
==== ==== ==== ==== ==== ==== ====
RATIO OF EARNINGS TO FIXED CHARGES 10.5 7.2 6.2 6.6 3.5 2.6 0.0
==== === === === === === ===
INADEQUACY OF COVERAGE(a) 0.0 0.0 0.0 0.0 0.0 0.0 40.4
=== === === === === === ====
</TABLE>
___________________________________
(a) The Company's 1991 loss from continuing operations includes litigation
charges of $38.0 million ($23.6 million after-tax).
<PAGE> 1
EXHIBIT 23.1
[ARTHUR ANDERSEN LLP]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated January 30, 1996
included in Brunswick Corporation's Form 10-K for the year ended December 31,
1995 and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois,
August 8, 1996
<PAGE> 1
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as
Trustee
Check if an Application to Determine
Eligibility of a Trustee Pursuant to Section
305(b)(2) _______________
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 36-1194448
(I.R.S. Employer
(State of Incorporation) Identification No.)
111 West Monroe Street, Chicago, Illinois 60603
(Address of principal executive offices)
Daniel G. Donovan, Harris Trust and Savings Bank,
111 West Monroe Street, Chicago, Illinois, 60603
312-461-2908
(Name, address and telephone number for agent for service)
BRUNSWICK CORPORATION
(Name of Obligor)
Delaware 36-0848180
(I.R.S. Employer
(State of Incorporation) Identification No.)
1 N. Field Ct.,
Lake Forest, Illinois 60045-4811
(Address of principal executive offices)
Debt Securities
(Title of indenture securities)
<PAGE> 2
1. GENERAL INFORMATION. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164
West Jackson Boulevard, Chicago, Illinois; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System,Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise
corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the
Trustee, describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. thru 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee as now in
effect which includes the authority of the trustee to commence
business and to exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between
Harris Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc.
which constitutes the articles of association of the Trustee as
now in effect and includes the authority of the Trustee to
commence business and to exercise corporate trust powers was filed
in connection with the Registration Statement of Louisville Gas
and Electric Company, File No. 2-44295, and is incorporated herein
by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in
connection with the Registration Statement of C-Cube Microsystems,
Inc., File No. 33-97166, and is incorporated herein by reference.
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or
examining authority.
(included as Exhibit B on page 3 of this statement)
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 31st day of July, 1996.
HARRIS TRUST AND SAVINGS BANK
By: /s/ D. G. Donovan
--------------------------
D. G. Donovan
Assistant Vice President
EXHIBIT A
The consents of the Trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents
that reports of examinations of said trustee by Federal and State authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /s/ D. G. Donovan
-------------------------
D.G. Donovan
Assistant Vice President
2
<PAGE> 4
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of March 31, 1996, as published in accordance with a
call made by the State Banking Authority and by the Federal Reserve Bank of the
Seventh Reserve District.
[LOGO]
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on March 31, 1996, a state banking institution organized and operating
under the banking laws of this State and a member of the Federal Reserve
System. Published in accordance with a call made by the Commissioner of Banks
and Trust Companies of the State of Illinois and by the Federal Reserve Bank of
this District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C> <C>
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin . . . . . . . . . . . . . . . $971,800
Interest bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . $508,198
Securities: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a. Held-to-maturity securities $0
b. Available-for-sale securities $2,925,091
Federal funds sold and securities purchased under agreements to resell in
domestic offices of the bank and of its Edge and Agreement
subsidiaries, and in IBF's:
Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $304,450
Securities purchased under agreements to resell . . . . . . . . . . . . . . . . . $0
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . . . . . . . . . . . . . . . . . . $7,653,290
LESS: Allowance for loan and lease losses . . . . . . . . . . . . . . . . . . . . $97,833
----------
Loans and leases, net of unearned income, allowance, and reserve
(item 4.a minus 4.b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $7,555,457
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $107,161
Premises and fixed assets (including capitalized leases) $139,122
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $203
Investments in unconsolidated subsidiaries and associated companies . . . . . . . . . . . . $200
Customer's liability to this bank on acceptances outstanding . . . . . . . . . . . . . . . $71,355
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $18,251
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $474,460
-----------
TOTAL ASSETS $13,075,748
===========
</TABLE>
3
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits:
In domestic offices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $4,830,361
Non-interest bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,390,307
Interest bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,440,054
In foreign offices, Edge and Agreement subsidiaries, and IBF's . . . . . . . . . . $2,990,031
Non-interest bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $71,451
Interest bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,918,580
Federal funds purchased and securities sold under agreements to repurchase in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's:
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $882,146
Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . . . $2,020,913
Trading Liabilities $66,711
Other borrowed money: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a. With remaining maturity of one year or less $897,852
b. With remaining maturity of more than one year $11,520
Bank's liability on acceptances executed and outstanding $71,355
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $295,000
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $186,774
-------------------------------
TOTAL LIABILITIES $12,252,663
-------------------------------
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $100,000
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $275,000
a. Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . $470,392
b. Net unrealized holding gains (losses) on available-for-sale securities ($22,307)
-------------------------------
TOTAL EQUITY CAPITAL $823,085
-------------------------------
Total liabilities, limited-life preferred stock, and equity capital . . . . . . . . . . . . $13,075,748
===============================
</TABLE>
I, Steve Neudecker, Vice President of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
STEVE NEUDECKER
4/30/96
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and, to the
best of our knowledge and belief, has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
the Commissioner of Banks and Trust Companies of the State of Illinois and is
true and correct.
EDWARD W. LYMAN,
ALAN G. McNALLY,
MARIBETH S. RAHE
Directors.
4
