___________________________________________________________________________
As filed with the Securities and Exchange Commission on April 2, 1996.
Registration No. 33-________
___________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CUMMINS ENGINE COMPANY, INC.
(Exact name of registrant as specified in its charter)
Indiana 35-0257090
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
500 Jackson Street, Box 3005, Columbus, Indiana 47202-3005
(812) 377-5000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Mark R. Gerstle
Vice President, General Counsel and Secretary
Cummins Engine Company, Inc.
500 Jackson Street
Columbus, IN 47202-3005
(812) 377-5000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to: Kris F. Heinzelman, Esq.
Cravath, Swaine & Moore, Worldwide Plaza,
825 Eighth Avenue, New York, N.Y. 10019-7415
(212) 474-1000
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, please check the following
box. [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. [ ]
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. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
_____________________________________________________________________________
Proposed
Proposed Maximum
Title of each Class Amount Maximum Aggregate Amount of
of Securities to be to be Offering Price Offering Registration
Registered Registered Per Share (1) Price (2) Fee
_____________________________________________________________________________
Common Stock,
$2.50 par value 3,200,000
per share shares $40.75 $130,400,000 $44,966
_____________________________________________________________________________
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Calculated in accordance with Rule 457(c) under the Securities Act based
upon the high and low price of securities of the same class on April 1,
1996, as quoted per the New York Stock Exchange composite Tape.
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.
_____________________________________________________________________________
<PAGE>
Prospectus
CUMMINS ENGINE COMPANY, INC.
3,200,000 Shares
Common Stock, par value $2.50 per share
This Prospectus relates to 3,200,000 shares of common stock, par
value $2.50 per share (the "Common Stock"), of Cummins Engine Company,
Inc., an Indiana corporation (the "Company"), owned by the shareholders
named herein under the caption "Selling Shareholders" (the "Selling
Shareholders") which shares of Common Stock are being offered for sale
pursuant hereto for the account of such Selling Shareholders. This
Prospectus is to be used in connection with the sale from time to time by
the Selling Shareholders of such shares of Common Stock. This Prospectus
also relates to such indeterminate number of additional shares of Common
Stock as may be issued to the Selling Shareholders, pursuant to any stock
dividend or stock split or in connection with a combination of shares,
recapitalization, reorganization, merger, consolidation or otherwise.
The Company has agreed with the Selling Shareholders to register
the Common Stock offered hereby and also has agreed to pay certain fees and
expenses incident to such registration. It is estimated that the fees and
expenses payable by the Company in connection with the registration of the
Common Stock will be approximately $52,816.00. The Company intends to keep
the registration statement, of which this Prospectus is a part, effective
until the earlier of March 8, 1999 and the date all the Common Stock
offered hereby has been sold hereunder.
The Common Stock of the Company is listed on the New York Stock
Exchange ("NYSE") and the Pacific Stock Exchange ("PSE") under the symbol
"CUM". On April 1, 1996, the last sale price on the NYSE for one share of
Common Stock of the Company was $40.375.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Common Stock may be offered for sale from time to time during
the periods specified herein by the Selling Shareholders in one or more
transactions described herein on the NYSE, PSE or any other securities
exchange on which the Common Stock is traded, in the over-the-counter
market, in one or more private transactions or in a combination of such
methods of sale, at prices and on terms then prevailing, at prices related
to such prices or at negotiated prices. See "Plan of Distribution". The
price at which any of the shares of Common Stock may be sold, and the
commissions, if any, paid in connection with any such sale, are unknown and
may vary from transaction to transaction. It is understood that the
Securities and Exchange Commission (the "Commission") may take the view
that, under certain circumstances, persons effecting resales of Common
Stock purchased and dealers or brokers handling such transactions may be
deemed (such persons not so conceding) to be "underwriters" within the
meaning of the Securities Act of 1933, and the rules and regulations
promulgated thereunder (the "Securities Act"), with respect to such sales.
_________________________________
The date of this Prospectus is April 2, 1996.
<PAGE>
No person has been authorized to give any information or to make
any representations not contained in this Prospectus in connection with the
offer made by this Prospectus and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company or by any underwriter, dealer or agent. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any of the
Common Stock offered hereby in any jurisdiction to any person to whom it is
unlawful to make such offer or solicitation in such jurisdiction. This
Prospectus does not constitute an offer to sell or a solicitation of an
offer to buy any securities other than those to which it relates. Neither
the delivery of this Prospectus nor any sale of or offer to sell the Common
Stock offered hereby shall, under any circumstances, create an implication
that there has been no change in the affairs of the Company since the date
hereof or that the information herein is correct as of any time subsequent
to its date.
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 with
the Commission pursuant to the informational requirements of the Exchange
Act can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following Regional Offices
of the Commission: New York Regional Office, 7 World Trade Center, 13th
Floor, New York, New York 10048 and Chicago Regional Office, Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Copies of such material can also be obtained upon written request addressed
to the Securities and Exchange Commission, Public Reference Section,
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. Such reports, proxy statements and other information can also be
inspected at the offices of the New York Stock Exchange, 20 Broad Street,
New York, New York 10005, and at the offices of the Pacific Stock Exchange,
301 Pine Street, San Francisco, California 94104, on which the Company's
Common Stock is listed.
This Prospectus forms a part of a registration statement on
Form S-3 (referred to herein, including all amendments and exhibits, as the
"Registration Statement") which the Company has filed under the Securities
Act with respect to the Common Stock. This Prospectus does not contain all
the information otherwise set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of
the Commission. For further information, reference is made to the
Registration Statement and the exhibits filed as part thereof. The
Registration Statement may be inspected at the public reference facilities
maintained by the Commission at the addresses set forth in the preceding
paragraph. Statements contained herein concerning any document filed as an
exhibit 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. Each such statement is qualified in its entirety by such
reference.
DOCUMENTS INCORPORATED BY REFERENCE
This Prospectus incorporates documents by reference which are not
presented herein or delivered herewith. These documents (other than
exhibits to such documents unless such exhibits are specifically
incorporated by reference) are available to any person to whom this
Prospectus is delivered, on written or oral request, without charge.
Requests should be directed to Cummins Engine Company, Inc., 500 Jackson
Street, Columbus, Indiana, 47202-3005, Attention: Shareholder Relations
(telephone number (812) 377-5000).
The Company hereby incorporates by reference its Annual Report on
Form 10-K for the fiscal year ended December 31, 1995.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
termination of the offering of the Common Stock offered hereby shall be
deemed to be incorporated by reference into this Prospectus.
Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document that also is
or is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
THE COMPANY
Cummins Engine Company, Inc. ("the Company") is a leading
worldwide designer and manufacturer of diesel engines, ranging from 76 to
6,000 horsepower. The Company also produces natural gas engines and engine
components and subsystems. The Company provides power for a wide variety
of equipment in its key markets: heavy-duty truck, midrange truck, power
generation, bus and light commercial vehicles, industrial products and
marine.
The Company sells its products to original equipment
manufacturers, distributors and other customers worldwide and conducts
manufacturing, sales, distribution and service activities in most areas of
the world. Sales of products to major international firms outside North
America are transacted by exports directly from the United States and
shipments from foreign facilities (operated through subsidiaries,
affiliates, joint ventures or licensees) which manufacture and/or assemble
the Company's products.
In 1995, approximately 58 percent of net sales were made in the
United States. Major international markets include Europe (15 percent of
net sales); Asia, the Far East and Australia (14 percent of net sales);
Canada (7 percent of net sales); and Mexico and South America (4 percent of
net sales).
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sales
from time to time of the Common Stock offered hereby. All proceeds from
the sale of the Common Stock offered hereby will be for the account of the
Selling Shareholders, as described below. See "Selling Shareholders" and
"Plan of Distribution".
DESCRIPTION OF COMMON STOCK
The following is a description of certain terms of the Common
Stock. This description does not purport to be complete and is subject to,
and qualified in its entirety by, reference to the Company's Restated
Articles of Incorporation.
General. The Company is authorized to issue up to 150,000,000
shares of Common Stock. As of January 28, 1996, there were approximately
40.2 million shares of Common Stock outstanding. At December 31, 1995, the
approximate number of holders of record of the Company's Common Stock was
5,000. Subject to the limitations described below and the prior rights of
the Company's Preferred Stock (the "Preferred Stock") and the Company's
Preference Stock (the "Preference Stock"), the Common Stock, $2.50 par
value, of the Company is entitled to dividends when and as declared by the
Board of Directors out of funds legally available therefor. Holders of
Common Stock are entitled to one vote per share. There is no provision for
cumulative voting or preemptive rights. The holders of the Preferred Stock
and the holders of the Preference Stock are each entitled to elect two
directors of the Company upon default in the payment of six quarterly
dividends on any series of such class and have voting rights with respect
to amendments of the Restated Articles of Incorporation affecting certain
of their rights and in the case of certain mergers, consolidations and
dispositions of substantially all the Company's assets. Upon any
liquidation, voluntary or involuntary, of the Company, holders of Common
Stock are entitled ratably to all the assets of the Company after payment
of the Company's liabilities and satisfaction of the liquidation
preferences of the Preferred Stock and the Preference Stock. The
outstanding shares of Common Stock are, and any shares of Common Stock
offered pursuant to a Prospectus Supplement will be, upon issuance against
full payment therefor, fully paid and nonassessable.
The Company's Common Stock is listed on the New York and Pacific
Stock Exchanges. The transfer agent and registrar for the Common Stock is
The First National Bank of Chicago, Chicago, Illinois.
Dividends. No dividends or distributions may be declared or paid
or made on, or acquisitions made of, any Common Stock unless dividends on
all outstanding Preferred Stock and Preference Stock for all past quarterly
dividend periods have been declared and paid or a sum sufficient for
payment set apart. A number of the agreements under which the Company has
borrowed money restrict the Company's payment of dividends (other than
stock dividends) and distributions on and the redemption, purchase and
acquisition by the Company of its capital stock, including the Preferred
Stock and the Preference Stock. These restrictions typically limit the sum
of all such payments, distributions, redemptions, purchases and
acquisitions from a given date to a specified amount of retained earnings
at such date plus consolidated net income and the net proceeds to the
Company from the sale of its capital stock and indebtedness converted into
such stock after such date. Several such agreements require the Company to
maintain minimum net worth and working capital at specified levels. In
addition, at any time the Company is in default under its revolving credit
facility or certain other financing arrangements, the Company would be
prohibited from paying dividends. The Company is presently unaware of any
facts or circumstances that would give rise to any such default.
Shareholders' Rights Plan. The Company has a Shareholders' Rights
Plan which it first adopted in 1986 (the "Rights Plan"). The Rights Plan
provides that each share of Common Stock has associated with it a stock
purchase right. The Rights Plan becomes operative when a person or entity
acquires 15% of the Common Stock or commences a tender offer to purchase
20% or more of the Common Stock without the approval of the Company's Board
of Directors. In the event a person or entity acquires 15% of the Common
Stock, each right, except for the acquiring person's rights, can be
exercised to purchase $400 worth of Common Stock for $200. In addition,
for a period of 10 days after such acquisition, the Board of Directors can
exchange such right for a new right which permits the holders to purchase
one share of Common Stock for $1. If a person or entity commences a tender
offer to purchase 20% or more of the Common Stock, unless the Board of
Directors redeems the rights within 10 days of the event, each right can be
exercised to purchase one share for $200. If the person or entity becomes
an acquiring person, then the provisions noted above apply. The Rights
Plan also allows holders of the rights to purchase shares of the acquiring
person's stock at a discount if the Company is acquired or 50% of the
assets or earnings power of the Company is transferred to an acquiring
person.
Antitakeover Provisions of Indiana Law. Indiana Code 23-1-42
(the "Control Share Act") provides that any person or group of persons that
acquires the power to vote more than one-fifth of certain corporations'
shares shall not have the right to vote such shares unless granted voting
rights by the holders of a majority of the outstanding shares of the
corporation and by the holders of a majority of the outstanding shares
excluding "interested shares". Interested shares are those shares held by
the acquiring person, officers of the corporation and employees of the
corporation who are also directors of the corporation. If the approval of
voting power for the shares is obtained, additional shareholder approvals
are required when a shareholder acquires the power to vote more than
one-third and more than a majority of the voting power of the corporation's
shares. In the absence of such approval, the additional shares acquired by
the shareholder may not be voted.
If the shareholders grant voting rights to the shares after a
shareholder has acquired more than a majority of the voting power, all
shareholders of the corporation are entitled to exercise statutory
dissenters' rights and to demand the value of their shares in cash from the
corporation. If voting rights are not accorded to the shares, the
corporation may have the right to redeem them. The provisions of the
Control Share Act do not apply to acquisitions of voting power pursuant to
a merger or share exchange agreement to which the corporation is a party.
The Company's By-laws provide that the Company is not subject to
the Control Share Act; however, such By-laws may be amended by the Board of
Directors without a shareholder vote.
Indiana Code Section 23-1-43 (the "Business Combination Act")
prohibits a person who acquires beneficial ownership of 10% or more of
certain corporations' shares (an "Interested Shareholder"), or any
affiliate or associate of an Interested Shareholder, from effecting a
merger or other business combination with the corporation for a period of
five years from the date on which the person became an Interested
Shareholder, unless the transaction in which the person became an
Interested Shareholder was approved in advance by the corporation's Board
of Directors. Following the five-year period, a merger or other business
combination may be effected with an Interested Shareholder only if (a) the
business combination is approved by the corporation's shareholders,
excluding the Interested Shareholder and any of its affiliates or
associates, or (b) the consideration to be received by shareholders in the
business combination is at least equal to the highest price paid by the
Interested Shareholder in acquiring its interest in the corporation, with
certain adjustments, and certain other requirements are met. The Business
Combination Act broadly defines the term "business combination" to include
mergers, sales or leases of assets, transfers of shares of the corporation,
proposals for liquidation and the receipt by an Interested Shareholder of
any financial assistance or tax advantage from the corporation, except
proportionately as a shareholder of the corporation.
The overall effect of the above provisions may be to render more
difficult or to discourage a merger, tender offer, proxy contest, the
assumption of control of the Company by a holder of a large block of the
Company's stock or other person, or the removal of incumbent management,
even if such actions may be beneficial to the Company's shareholders
generally.
Investment Agreements. In July 1990, the Company entered into
(i) an Investment Agreement with Ford Motor Company ("Ford") pursuant to
which, among other things, in consideration of $100,000,000 received from
Ford, Ford was issued one share of a newly created series of the Company's
Preference Stock, designated Convertible Preference Stock, Series F (the
"Series F Preference Stock"), which Series F Preference Stock was
subsequently converted into 1,600,000 shares of Common Stock (3,200,000
shares on a stock split basis), (ii) an Investment Agreement with Tenneco
Inc., a Delaware corporation ("Tenneco"), pursuant to which, among other
things, in consideration of $100,000,000 received from Tenneco, Tenneco was
issued one share of a newly created series of the Company's Preference
Stock, designated Convertible Preference Stock, Series T (the "Series T
Preference Stock"), which Series T Preference Stock was subsequently
converted into 1,600,000 shares of Common Stock (3,200,000 shares on a
stock split basis) and (iii) an Investment Agreement with Kubota
Corporation, a Japanese corporation ("Kubota"), pursuant to which, among
other things, in consideration of $49,985,000 received from Kubota, Kubota
was issued one share of a newly created series of the Company's Preference
Stock, designated Convertible Preference Stock, Series K (the "Series K
Preference Stock"), which Series K Preference Stock was subsequently
converted into 799,760 shares of Common Stock (1,599,520 shares on a stock
split basis). The consideration received from each of Ford, Tenneco and
Kubota (individually, an "Investor" and collectively, the "Investors")
represented a price of $62.50 per share of Common Stock ($31.25 per share
on a stock split basis).
In July 1990, the Company also entered into a Stock Option
Agreement with Ford, pursuant to which, among other things, for a six-year
period Ford has an option (the "Option") to purchase 1,480,702 shares
(2,961,404 shares on a stock split basis) of Common Stock, subject to
adjustment for various actions that Ford or the Company may or may not
take, at a price per share equal to the higher of (x) $62.50 per share
($31.25 per share on a stock split basis) and (y) 120% of the Market Price
(as defined in such Stock Option Agreement) at the time of exercise of the
Option thereunder.
The Investment Agreement with each Investor, among other things,
prohibits each Investor and its affiliates (as defined in Rule 12b-2 under
the Exchange Act), except in limited circumstances, from (i) acquiring
additional securities of the Company having the ordinary power to vote, in
the absence of contingencies, in the election of directors of the Company
("Voting Securities") in excess of the percentage limitation specified
therein (in the case of Ford 10.8% (plus the shares purchased pursuant to
the Option), in the case of Tenneco 10.8%, and in the case of Kubota 5.4%;
(ii) making any public announcement or proposal regarding any merger,
consolidation or certain other extraordinary transactions unless solicited
by the Company's Board of Directors; (iii) participating in any
solicitation of proxies or election contest; (iv) proposing any matter for
submission to a vote of the Company's shareholders; (v) participating in a
group with respect to any Voting Securities; (vi) granting any proxy to any
person not designated by the Company; (vii) entering into any discussions,
negotiations, arrangements, or understandings with respect to any of the
foregoing provisions; (viii) disclosing to any third party any intention,
plan or arrangement inconsistent with the foregoing provisions or the
provisions regarding restrictions on transfers of Voting Securities; and
(ix) requesting the Company to waive, amend or modify any standstill
provision.
If an Investor's interest is diluted through subsequent issuances
of Voting Securities by the Company, each Investor has the right under its
Investment Agreement to purchase additional Voting Securities of the
Company in the open market, through privately negotiated transactions or
directly from the Company (on the same terms as such subsequent issuances
in the case of acquisitions directly from the Company), up to an amount
that would result in the Investor beneficially owning the same percentage
of the total Voting Securities as that owned immediately prior to such
issuances. In the event that an Investor elects to acquire some or all of
such shares of Common Stock, the Company could be required to issue new
shares of Common Stock to such Investor.
If the Company issues Voting Securities to a person that would
have a higher percentage interest of Voting Securities than Ford, Ford has
the right pursuant to its Investment Agreement to purchase Voting
Securities from the Company, on the same terms, up to such higher
percentage. In the event any manufacturer or wholesale distributor of
automobiles or trucks having annual or consolidated worldwide automobile or
truck sales in excess of $100,000,000 or any affiliate thereof
("Manufacturers") (i) files a Schedule 13D in respect of the acquisition of
Voting Securities in the open market or through privately negotiated
transaction or (ii) makes a filing under the Hart-Scott Rodino Antitrust
Improvements Act of 1976 evidencing an intent to acquire Voting Securities,
Ford would be permitted to buy, in the open market or, at the option of the
Company, from the Company, Voting Securities representing the highest total
voting power of Voting Securities of such Manufacturer; provided that Ford
may not purchase more than a 10% interest in the Company in such
transactions and that the number of shares purchasable upon exercise of the
Option is reduced by the number of shares so purchased. The Investment
Agreement with Ford provides that the Company will not issue or sell Voting
Securities to any Manufacturer; provided that such prohibition will
terminate in the event that Ford sells Voting Securities representing in
excess of 33% of the voting power of the Voting Securities beneficially
owned by it (excluding, for purposes of the calculation of such percentage,
certain permitted sales and Voting Securities which may in the future be
acquired by Ford pursuant to certain provisions of its Investment
Agreement).
In the event the Board of Directors approves any transaction
pursuant to which the Company is to be acquired in a merger, consolidation
or sale of substantially all its assets, or pursuant to which a person is
to acquire voting securities representing a majority of the voting power of
all then outstanding Voting Securities, then, as long as that transaction
is being pursued, each Investor would be permitted to make a tender or
exchange offer notwithstanding the restrictions on acquiring additional
Voting Securities and on making acquisition proposals described above.
Except in limited circumstances, each Investment Agreement
prohibits transfers or sales of Voting Securities by the Investor for six
years. After six years each Investor is subject to other limited
restrictions on transfer, as more fully set forth in their respective
Investment Agreements.
Notwithstanding the transfer restrictions, each Investor is
permitted to tender its Voting Securities into a tender or exchange offer
commenced by the Company (or a subsidiary of the Company) or approved by
the Board of Directors. If any other tender or exchange offer is
consummated and the bidder acquires Voting Securities representing more
than 50% of the voting power of the Voting Securities then outstanding,
each Investor has the right to require the Company to purchase the amount
of Voting Securities which would have been purchased in that offer had such
Investor tendered its shares.
Each Investor is free to vote its Voting Securities as it sees
fit on any matter submitted to a vote of the Company's shareholders except
that each Investor is required to vote for the election of all nominees
included in the Company's slate of directors.
In the event the Company enters into an agreement pursuant to
which it agrees to issue shares to a person that would have more than a 10%
interest in the Company, Ford and Tenneco would be given the benefit of any
terms more favorable (other than price and amount of securities being
purchased) than those in their respective Investment Agreements.
Each of Ford and Tenneco, pursuant to their respective Investment
Agreements, is entitled to designate one person (reasonably satisfactory to
the Company) for election to the Board of Directors. Ford is presently
entitled to designate at least one such person, and may in the future be
entitled to designate more, depending upon and in proportion to its
percentage ownership in the Company. Neither Ford nor Tenneco will be
entitled to designate any persons for election to the Board of Directors if
its respective percentage ownership of the voting power of the Company's
voting securities drops to below 10% as a result of the transfer of voting
securities.
The term of each Investment Agreement is until the earlier of
(i) the later of six years and the first date on which the respective
Investor ceases to beneficially own Voting Securities representing at least
5% of the total voting power of all then outstanding Voting Securities and
(ii) ten years; provided that certain provisions of the respective
Investment Agreements will explicitly survive their stated terms.
In connection with the Investment Agreements, the Company
modified the Rights Plan to provide that (i) Ford would not be deemed an
"Acquiring Person" thereunder; provided that Ford does not acquire
Beneficial Ownership of Common Shares (as defined therein) except as
permitted by the Investment Agreement and Stock Option Agreement between
the Company and Ford and (ii) Tenneco would not be deemed an "Acquiring
Person" thereunder; provided that Tenneco does not acquire Beneficial
Ownership of Common Shares except as permitted by the Investment Agreement
between the Company and Tenneco. Pursuant to, and as provided in, the
Investment Agreements the Company also agreed to further amend the Rights
Plan to permit acquisitions of Voting Securities permitted by the
Investment Agreements.
Pursuant to a Joinder in Agreement dated as of December 29, 1993,
Bankers Trust Company as trustee (the "Tenneco Trustee") of the Tenneco
Inc. General Employment Benefit Trust (the "Tenneco Trust") became a party
to the Investment Agreement with Tenneco pursuant to which Tenneco, with
the consent of the Company, transferred the 3,200,000 shares of Common
Stock of the Company held by it to the Tenneco Trustee. On March 8, 1996,
the Tenneco Trustee transferred such shares (a) as to 958,200 shares, to
the Investment Company of America ("ICA"), (b) as to 500,000 shares, to
Fundamental Investors Inc. ("FI") and (c) as to 1,741,800 shares, to the
Northern Trust Company (the "Cummins Trustee") as trustee of the Cummins
Engine Company, Inc. and Affiliates Collective Investment Trust. All such
shares of Common Stock of the Company may be sold pursuant to this
Prospectus. See "Plan of Distribution". In connection with such transfer,
the Company was released from all its obligations under the Investment
Agreement with Tenneco and the Tenneco Trustee from March 8, 1996.
The foregoing descriptions of the Investment Agreements with each
of Ford, Tenneco and Kubota, the Amendment to the Rights Agreement and the
Joinder in Agreement are subject to, and qualified in their entirety by,
reference to each such agreement, certificate or document.
SELLING SHAREHOLDERS
The following table sets forth as of the date of this Prospectus,
the name of each Selling Shareholder, the nature of any position, office
or other material relationship that such Selling Shareholder has had within
the past three years with the Company or any of its affiliates and the
number of shares of Common Stock which each such Selling Shareholder owned
as of such date. The table also sets forth the number of shares of Common
Stock owned by each Selling Shareholder that may be offered for sale from
time to time by this Prospectus and the number of shares of Common Stock to
be held by each such Selling Shareholder assuming the sale of all the
Common Stock offered hereby. The Company may amend or supplement this
Prospectus from time to time to disclose the names, relationships to the
Company and holdings of Common Stock of additional Selling Shareholders or
to update the disclosure set forth herein.
__________________________________________________________________________
Number of Number of Number of Shares
Name and Shares of Shares of of Common Stock
Relationship Common Stock Common Stock Owned Assuming the
to the Owned as of the Which May Be Sale of All of the
Company, Date of this Sold Pursuant to Shares Offered
if any Prospectus this Prospectus Hereby
__________________________________________________________________________
Investment
Company of
America 958,200 958,200 0
__________________________________________________________________________
Fundamental
Investors Inc. 500,000 500,000 0
__________________________________________________________________________
The Northern
Trust Company as
trustee of the
Cummins Engine
Company, Inc.
and Affiliates
Collective
Investment Trust 1,741,800 1,741,800 0
__________________________________________________________________________
Total 3,200,000 3,200,000 0
__________________________________________________________________________
PLAN OF DISTRIBUTION
Of the 3,200,000 shares of Common Stock offered hereby
(a) 958,200 shares (the "ICA Shares") are being offered by ICA and 500,000
shares (the "FI Shares") are being offered by FI, in each case, pursuant to
a Consent and Agreement (the "First Consent and Agreement") dated as of
March 7, 1996 among Tenneco, the Company, the Tenneco Trustee as trustee of
the Tenneco Trust, ICA and FI; and (b) 1,741,800 shares (the "Cummins Trust
Shares" and, with the FI Shares and the ICA Shares, the "Shares") are being
offered by the Cummins Trustee (with ICA and FI, the "Selling
Shareholders") as trustee of the Cummins Engine Company, Inc. and
Affiliates Collective Investment Trust pursuant to a Consent and Agreement
dated as of March 7, 1996 (the "Second Consent and Agreement" and, with the
First Consent and Agreement, the "Consents and Agreements"), among the
Tenneco Trustee and The Northern Trust Company as Trustee of the Cummins
Engine Company, Inc. and Affiliates Collective Investment Trust. The
Shares may be offered for sale by the Selling Shareholders named herein
from time to time pursuant and subject to the applicable provisions of the
Consents and Agreements. Pursuant to such provisions, this Prospectus
shall be available for the offer and sale of the Shares subject to certain
Blackout Periods described below. Under the Consents and Agreements, the
Company is required to maintain the effectiveness of the Registration
Statement until March 8, 1999 or, if sooner, until all the Shares covered
by such registration statement have been sold thereunder.
Pursuant to the Consents and Agreements, the Company is entitled
to elect that the Registration Statement not be useable, for a reasonable
period of time, but not in excess of 90 days (a "Blackout Period"), if the
Company determines in good faith that the distribution of Shares pursuant
to the Registration Statement (or the use of the Registration Statement or
this Prospectus) would interfere with any pending financing, acquisition,
corporate reorganization or any other corporate development involving the
Company or any of its subsidiaries or would require premature disclosure
thereof and promptly gives ICA, FI and the Cummins Trustee written notice
of such determination, provided, however, that the aggregate number of days
included in all Blackout Periods during any consecutive 12 months during
the period from the date hereof until March 8, 1999 shall not exceed 180
days.
The Common Stock may be offered for sale on the NYSE, PSE or any
other securities exchange on which the Common Stock is traded, in the over-
the-counter market, in one or more private transactions or in a combination
of such methods of sale, at prices and on terms then prevailing, at prices
related to such prices or at negotiated prices. Subject in all cases to the
restrictions contained in the Consents and Agreements, the Common Stock may
be sold by one or more of the following means of distribution: (a) a block
trade in which the broker-dealer so engaged will attempt to sell the Common
Stock as agent but may position and resell a portion of the block as
principal to facilitate the transaction; (b) purchases by a broker-dealer
as principal and resale by such broker-dealer for its own account pursuant
to this Prospectus; and (c) ordinary brokerage transactions and
transactions in which the broker solicits purchasers. This Prospectus may
be amended and supplemented from time to time to describe a specific plan
of distribution.
In connection with distributions of the Common Stock or
otherwise, the Selling Shareholders may enter into hedging transactions
with broker-dealers or other financial institutions. In connection with
such transactions, broker-dealers or other financial institutions may
engage in short sales of Common Stock in the course of hedging the
positions they assume with Selling Shareholders. The Selling Shareholders
may also sell Common Stock short and redeliver the shares to close out such
short positions. The Selling Shareholders may also enter into option or
other transactions with broker-dealers or other financial institutions
which require the delivery to such broker-dealer or other financial
institutions which require the delivery of such broker-dealer or other
financial institution of the Common Stock offered hereby, which Common
Stock such broker-dealer or other financial institution may resell pursuant
to this Prospectus (as supplemented or amended to reflect such
transaction). The Selling Shareholders may also pledge the shares
registered hereunder to a broker-dealer or other financial institution and,
upon a default, such broker-dealer or other financial institution may,
subject to the Consents and Agreements, effect sales of the pledged Common
Stock pursuant to this Prospectus (as supplemented or amended to reflect
such transaction).
Brokers, dealers or agents may receive compensation in the form
of commissions, discounts or concessions from Selling Shareholders in
amounts to be negotiated in connection with sales pursuant hereto. Any
such remuneration will be disclosed in a prospectus or prospectus
supplement filed under the Securities Act. Such brokers or dealers and any
other participating brokers or dealers may be deemed to be "underwriters"
within the meaning of the Securities Act, in connection with such sales and
any such commission, discount or concession may be deemed to be
underwriting discounts or commissions under the Securities Act. In
addition, any securities covered by this Prospectus which qualify for sale
pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to
this Prospectus.
Commissions, discounts and transfer taxes, if any, attributable
to the sales of the Common Stock will be borne by the Selling Shareholders,
as will the costs of legal counsel and accountants for the Selling
Shareholders. The Selling Shareholders and the Company have agreed that,
in the event that any offering pursuant to the Registration Statement is an
underwritten offering, they shall enter into an Indemnification Agreement
providing for indemnification of the Selling Shareholders by the Company
and indemnification of the Company by the Selling Shareholders, on terms
customary for such agreements at such time.
LEGAL MATTERS
The validity of the shares of Common Stock offered by the Selling
Shareholders will be passed upon for the Company by Mark R. Gerstle, Vice
President, General Counsel and Secretary of the Company.
EXPERTS
The consolidated financial statements of the Company and its
subsidiaries appearing in the Company's Annual Report have been audited by
Arthur Andersen LLP, independent auditors, as set forth in their reports
thereon set forth therein and incorporated herein by reference. Such
financial statements have been incorporated herein by reference in reliance
upon such reports given upon the authority of such firm as experts in
accounting and auditing.
<PAGE>
No dealer, salesperson or any other individual has been authorized to give
any information or to make any representations other than those contained
in this Prospectus in connection with the offer made by this Prospectus
and, if given or made, such information or representations must not be
relied upon as having been authorized by the Company. Neither the delivery
of this Prospectus nor any sale made hereunder shall under any
circumstances create an implication that there has been no change in the
facts. This Prospectus does not constitute an offer or solicitation by
anyone in any jurisdiction in which such offer or solicitation is not
authorized or in which the person making such offer or solicitation is not
qualified to do so or to anyone to whom it is unlawful to make such offer
or solicitation.
_________________
Table of Contents
_________________
Page
____
Available Information 4
Documents Incorporated by Reference 5
The Company 5
Use of Proceeds 6
Description of Common Stock 6
Selling Shareholders 13
Plan of Distribution 14
Legal Matters 16
Experts 16
Cummins Engine Company, Inc.
Common Stock
($2.50 par value)
Prospectus Dated April 2, 1996
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
The following table sets forth those expenses to be incurred by the
Company in connection with the issuance and distribution of the securities
being registered, other than underwriting discounts and commissions. All of
the amounts shown are estimates, except the applicable Securities and
Exchange Commission registration fee.
Securities and Exchange Commission Filing Fees $44,966.00
Accounting Fees $ 2,850.00
Legal Fees $ 5,000.00
__________
Total Expenses $52,816.00
*Expenses of this offering, other than commission expenses and brokerage
fees, set forth above will be paid by the Company.
Item 15. Indemnification of Directors and Officers
Article VI of the By-laws of the Corporation sets forth certain rights
of the directors and officers of the Corporation to indemnification.
Section 23-1-37 of the Indiana Code provides that Indiana corporations
have the power to indemnify their directors, officers, employees and agents
against certain expenses and liabilities in connection with actions, suits
and proceedings and the power to maintain certain insurance policies
against liabilities incurred by such officers, directors, employees and
agents.
The Corporation maintains insurance policies that provide for
indemnification of directors, officers, employees and agents against
certain liabilities.
Item 16. Exhibits
Exhibits filed as part of this Registration Statement are listed in
the Exhibit Index on page E-1.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(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% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(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 this registration
statement;
Provided, however, that paragraphs (i) and (ii) above 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 registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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.
(b) As to documents subsequently filed that are incorporated by
reference: The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 that is incorporated
by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) As to indemnification: Insofar as indemnification for
liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant pursuant to
the provisions described in Item 15 herein, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
__________
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned, thereunto duly authorized.
CUMMINS ENGINE COMPANY, INC.
By /s/Kiran M. Patel By /s/John McLachlan
__________________ _________________
Kiran M. Patel John McLachlan
Vice President and Chief Vice President -
Financial Officer Corporate Controller
(Principal Financial (Principal Accounting
Officer) Officer)
Date: April 2, 1996
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Signatures Title Date
__________ _____ ____
Director & Chairman of the Board 4/2/96
* of Directors & Chief Executive
_____________________ Officer (Principal Executive Officer)
(James A. Henderson)
* Director and President & Chief 4/2/96
_____________________ Operating Officer
(Theodore M. Solso)
* 4/2/96
_____________________ Director
(Harold Brown)
*
_____________________ Director 4/2/96
(K. R. Dabrowski)
*
_____________________ Director 4/2/96
(Robert J. Darnall)
*
_____________________ Director 4/2/96
(W. Y. Elisha)
*
_____________________ Director 4/2/96
(Hanna H. Gray)
*
_____________________ Director 4/2/96
(J. Irwin Miller)
*
_____________________ Director 4/2/96
(William I. Miller)
*
_____________________ Director 4/2/96
(Donald S. Perkins)
*
________________________ Director 4/2/96
(William D. Ruckelshaus)
*
_____________________ Director 4/2/96
(H. B. Schacht)
*
_____________________ Director 4/2/96
(F. A. Thomas)
*
_____________________ Director 4/2/96
(J. Lawrence Wilson)
By /s/Mark R. Gerstle
__________________
Mark R. Gerstle
Attorney-in-fact
<PAGE>
CUMMINS ENGINE COMPANY, INC.
EXHIBIT INDEX
____________________________
3(a) Restated Articles of Incorporation of Cummins Engine Company,
Inc., as amended (incorporated by reference to Quarterly
Report on Form 10-Q for the quarter ended April 3, 1994, by
reference to Quarterly Report on Form 10-Q for the quarter
ended October 1, 1989 and by reference to Form 8-K, dated
July 26, 1990).
3(b) By-laws of Cummins Engine Company, Inc., as amended and
restated effective as of August 12, 1994 (incorporated
by reference to Quarterly Report on Form 10-Q for the quarter
ended October 2, 1994).
5 Opinion of Mark R. Gerstle, Vice President, General Counsel and
Secretary, with respect to securities registered hereunder
(filed herewith).
23.1 Consent of Mark R. Gerstle, Esq. (included in Exhibit 5).
23.2 Consent of Arthur Andersen LLP (filed herewith).
24 Powers of Attorney (filed herewith).
99.1 Consent and Agreement dated as of March 7, 1996 among Tenneco Inc.,
Cummins Engine Company, Inc., Bankers Trust Company as trustee of
the Tenneco Inc. General Employee Benefit Trust, the Investment
Company of America and Fundamental Investors, Inc.
(filed herewith).
99.2 Consent and Agreement dated as of March 7, 1996 among Tenneco Inc.,
Cummins Engine Company, Inc., Bankers Trust Company as trustee of
the Tenneco Inc. General Employee Benefit Trust and The Northern
Trust Company as trustee of the Cummins Engine Company, Inc. and
Affiliates Collective Investment Trust (filed herewith).
EXHIBIT 5
CUMMINS ENGINE COMPANY, INC., AND SUBSIDIARIES
______________________________________________
OPINION OF MARK R. GERSTLE
Vice President, General Counsel and Secretary
With Respect to Securities Registered Hereunder
_______________________________________________
Cummins Engine Company, Inc.
Common Stock, Par Value $2.50 Per Share
I am the Vice President, General Counsel and Secretary of Cummins
Engine Company, Inc., an Indiana corporation (the "Company").
I refer to the Registration Statement on Form S-3 (the "Registration
Statement") being filed by the Company on the date hereof with the
Securities and Exchange Commission under the Securities Act of 1933 with
respect to the proposed shelf registration of 3,200,000 shares of common
stock, par value $2.50 per share, of the Company (the "Shares").
In connection with the foregoing I have examined originals, or
copies certified or otherwise identified to my satisfaction, of such
documents, corporate records and other instruments as I have deemed
necessary or appropriate for the purpose of this opinion.
Based upon the foregoing, I am of opinion that the Shares are
validly authorized and are legally issued, fully paid and nonassessable.
I know that I am referred to under the heading "Legal Matters" in
the Registration Statement, and I consent to such use of my name in the
Registration Statement and to the use of this opinion for filing as an
exhibit to the Registration Statement.
Dated: April 2, 1996
/s/Mark R. Gerstle
_______________________
Mark R. Gerstle
Vice President, General
Counsel and Secretary
EXHIBIT 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
__________________________________________
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our
report dated January 22, 1996 included in Cummins Engine Company,
Inc'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
March 25, 1996
EXHIBIT 24
CUMMINS ENGINE COMPANY, INC.
POWER OF ATTORNEY
____________________________
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints Mark R. Gerstle and Kiran M. Patel and
each of them, with full power to act without the other, as his
true and lawful attorney-in-fact and agent, with full and several
powers of substitution and resubstitution for him in his name,
place and stead, in any and all capacities, to sign a shelf
Registration Statement on Form S-3 to be filed under the
Securities Act of 1933 by Cummins Engine Company, Inc. (the
"Corporation") in connection with the sale from time to time of
the Corporation's equity securities by (a) Investment Company of
America, (b) Fundamental Investors, Inc., and (c) The Northern
Trust Company as trustee of the Cummins Engine Company, Inc. and
Affiliates Collective Investment Trust, and any amendments
(including post-effective amendments) to such Registration
Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said 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 and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said 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.
Dated: March 29, 1996
/s/James A. Henderson
__________________________
James A. Henderson
Director & Chairman of the
Board and Chief Executive
Officer
<PAGE>
CUMMINS ENGINE COMPANY, INC.
POWER OF ATTORNEY
____________________________
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints Mark R. Gerstle and Kiran M. Patel and
each of them, with full power to act without the other, as his
true and lawful attorney-in-fact and agent, with full and several
powers of substitution and resubstitution for him in his name,
place and stead, in any and all capacities, to sign a shelf
Registration Statement on Form S-3 to be filed under the
Securities Act of 1933 by Cummins Engine Company, Inc. (the
"Corporation") in connection with the sale from time to time of
the Corporation's equity securities by (a) Investment Company of
America, (b) Fundamental Investors, Inc., and (c) The Northern
Trust Company as trustee of the Cummins Engine Company, Inc. and
Affiliates Collective Investment Trust, and any amendments
(including post-effective amendments) to such Registration
Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said 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 and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said 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.
Dated: March 29, 1996
/s/Theodore M. Solso
________________________
Theodore M. Solso
Director & President and
Chief Operating Officer
<PAGE>
CUMMINS ENGINE COMPANY, INC.
POWER OF ATTORNEY
____________________________
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints Mark R. Gerstle and Kiran M. Patel and
each of them, with full power to act without the other, as his
true and lawful attorney-in-fact and agent, with full and several
powers of substitution and resubstitution for him in his name,
place and stead, in any and all capacities, to sign a shelf
Registration Statement on Form S-3 to be filed under the
Securities Act of 1933 by Cummins Engine Company, Inc. (the
"Corporation") in connection with the sale from time to time of
the Corporation's equity securities by (a) Investment Company of
America, (b) Fundamental Investors, Inc., and (c) The Northern
Trust Company as trustee of the Cummins Engine Company, Inc. and
Affiliates Collective Investment Trust, and any amendments
(including post-effective amendments) to such Registration
Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said 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 and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said 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.
Dated: March 29, 1996
/s/Harold Brown
_______________
Harold Brown
Director
<PAGE>
CUMMINS ENGINE COMPANY, INC.
POWER OF ATTORNEY
____________________________
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints Mark R. Gerstle and Kiran M. Patel and
each of them, with full power to act without the other, as his
true and lawful attorney-in-fact and agent, with full and several
powers of substitution and resubstitution for him in his name,
place and stead, in any and all capacities, to sign a shelf
Registration Statement on Form S-3 to be filed under the
Securities Act of 1933 by Cummins Engine Company, Inc. (the
"Corporation") in connection with the sale from time to time of
the Corporation's equity securities by (a) Investment Company of
America, (b) Fundamental Investors, Inc., and (c) The Northern
Trust Company as trustee of the Cummins Engine Company, Inc. and
Affiliates Collective Investment Trust, and any amendments
(including post-effective amendments) to such Registration
Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said 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 and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said 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.
Dated: March 29, 1996
/s/K. R. Dabrowski
___________________
K. R. Dabrowski
Director
<PAGE>
CUMMINS ENGINE COMPANY, INC.
POWER OF ATTORNEY
____________________________
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints Mark R. Gerstle and Kiran M. Patel and
each of them, with full power to act without the other, as his
true and lawful attorney-in-fact and agent, with full and several
powers of substitution and resubstitution for him in his name,
place and stead, in any and all capacities, to sign a shelf
Registration Statement on Form S-3 to be filed under the
Securities Act of 1933 by Cummins Engine Company, Inc. (the
"Corporation") in connection with the sale from time to time of
the Corporation's equity securities by (a) Investment Company of
America, (b) Fundamental Investors, Inc., and (c) The Northern
Trust Company as trustee of the Cummins Engine Company, Inc. and
Affiliates Collective Investment Trust, and any amendments
(including post-effective amendments) to such Registration
Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said 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 and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said 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.
Dated: March 29, 1996
/s/Robert J. Darnall
____________________
Robert J. Darnall
Director
<PAGE>
CUMMINS ENGINE COMPANY, INC.
POWER OF ATTORNEY
____________________________
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints Mark R. Gerstle and Kiran M. Patel and
each of them, with full power to act without the other, as his
true and lawful attorney-in-fact and agent, with full and several
powers of substitution and resubstitution for him in his name,
place and stead, in any and all capacities, to sign a shelf
Registration Statement on Form S-3 to be filed under the
Securities Act of 1933 by Cummins Engine Company, Inc. (the
"Corporation") in connection with the sale from time to time of
the Corporation's equity securities by (a) Investment Company of
America, (b) Fundamental Investors, Inc., and (c) The Northern
Trust Company as trustee of the Cummins Engine Company, Inc. and
Affiliates Collective Investment Trust, and any amendments
(including post-effective amendments) to such Registration
Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said 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 and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said 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.
Dated: March 29, 1996
/s/W. Y. Elisha
__________________
W. Y. Elisha
Director
<PAGE>
CUMMINS ENGINE COMPANY, INC.
POWER OF ATTORNEY
____________________________
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints Mark R. Gerstle and Kiran M. Patel and
each of them, with full power to act without the other, as his
true and lawful attorney-in-fact and agent, with full and several
powers of substitution and resubstitution for him in his name,
place and stead, in any and all capacities, to sign a shelf
Registration Statement on Form S-3 to be filed under the
Securities Act of 1933 by Cummins Engine Company, Inc. (the
"Corporation") in connection with the sale from time to time of
the Corporation's equity securities by (a) Investment Company of
America, (b) Fundamental Investors, Inc., and (c) The Northern
Trust Company as trustee of the Cummins Engine Company, Inc. and
Affiliates Collective Investment Trust, and any amendments
(including post-effective amendments) to such Registration
Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said 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 and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said 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.
Dated: March 29, 1996
/s/Hanna H. Gray
________________
Hanna H. Gray
Director
<PAGE>
CUMMINS ENGINE COMPANY, INC.
POWER OF ATTORNEY
____________________________
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints Mark R. Gerstle and Kiran M. Patel and
each of them, with full power to act without the other, as his
true and lawful attorney-in-fact and agent, with full and several
powers of substitution and resubstitution for him in his name,
place and stead, in any and all capacities, to sign a shelf
Registration Statement on Form S-3 to be filed under the
Securities Act of 1933 by Cummins Engine Company, Inc. (the
"Corporation") in connection with the sale from time to time of
the Corporation's equity securities by (a) Investment Company of
America, (b) Fundamental Investors, Inc., and (c) The Northern
Trust Company as trustee of the Cummins Engine Company, Inc. and
Affiliates Collective Investment Trust, and any amendments
(including post-effective amendments) to such Registration
Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said 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 and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said 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.
Dated: March 29, 1996
/s/J. Irwin Miller
__________________
J. Irwin Miller
Director
<PAGE>
CUMMINS ENGINE COMPANY, INC.
POWER OF ATTORNEY
____________________________
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints Mark R. Gerstle and Kiran M. Patel and
each of them, with full power to act without the other, as his
true and lawful attorney-in-fact and agent, with full and several
powers of substitution and resubstitution for him in his name,
place and stead, in any and all capacities, to sign a shelf
Registration Statement on Form S-3 to be filed under the
Securities Act of 1933 by Cummins Engine Company, Inc. (the
"Corporation") in connection with the sale from time to time of
the Corporation's equity securities by (a) Investment Company of
America, (b) Fundamental Investors, Inc., and (c) The Northern
Trust Company as trustee of the Cummins Engine Company, Inc. and
Affiliates Collective Investment Trust, and any amendments
(including post-effective amendments) to such Registration
Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said 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 and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said 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.
Dated: March 29, 1996
/s/William I. Miller
____________________
William I. Miller
Director
<PAGE>
CUMMINS ENGINE COMPANY, INC.
POWER OF ATTORNEY
____________________________
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints Mark R. Gerstle and Kiran M. Patel and
each of them, with full power to act without the other, as his
true and lawful attorney-in-fact and agent, with full and several
powers of substitution and resubstitution for him in his name,
place and stead, in any and all capacities, to sign a shelf
Registration Statement on Form S-3 to be filed under the
Securities Act of 1933 by Cummins Engine Company, Inc. (the
"Corporation") in connection with the sale from time to time of
the Corporation's equity securities by (a) Investment Company of
America, (b) Fundamental Investors, Inc., and (c) The Northern
Trust Company as trustee of the Cummins Engine Company, Inc. and
Affiliates Collective Investment Trust, and any amendments
(including post-effective amendments) to such Registration
Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said 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 and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said 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.
Dated: March 29, 1996
/s/Donald S. Perkins
____________________
Donald S. Perkins
Director
<PAGE>
CUMMINS ENGINE COMPANY, INC.
POWER OF ATTORNEY
____________________________
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints Mark R. Gerstle and Kiran M. Patel and
each of them, with full power to act without the other, as his
true and lawful attorney-in-fact and agent, with full and several
powers of substitution and resubstitution for him in his name,
place and stead, in any and all capacities, to sign a shelf
Registration Statement on Form S-3 to be filed under the
Securities Act of 1933 by Cummins Engine Company, Inc. (the
"Corporation") in connection with the sale from time to time of
the Corporation's equity securities by (a) Investment Company of
America, (b) Fundamental Investors, Inc., and (c) The Northern
Trust Company as trustee of the Cummins Engine Company, Inc. and
Affiliates Collective Investment Trust, and any amendments
(including post-effective amendments) to such Registration
Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said 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 and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said 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.
Dated: March 29, 1996
/s/William D. Ruckelshaus
_________________________
William D. Ruckelshaus
Director
<PAGE>
CUMMINS ENGINE COMPANY, INC.
POWER OF ATTORNEY
____________________________
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints Mark R. Gerstle and Kiran M. Patel and
each of them, with full power to act without the other, as his
true and lawful attorney-in-fact and agent, with full and several
powers of substitution and resubstitution for him in his name,
place and stead, in any and all capacities, to sign a shelf
Registration Statement on Form S-3 to be filed under the
Securities Act of 1933 by Cummins Engine Company, Inc. (the
"Corporation") in connection with the sale from time to time of
the Corporation's equity securities by (a) Investment Company of
America, (b) Fundamental Investors, Inc., and (c) The Northern
Trust Company as trustee of the Cummins Engine Company, Inc. and
Affiliates Collective Investment Trust, and any amendments
(including post-effective amendments) to such Registration
Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said 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 and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said 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.
Dated: March 29, 1996
/s/H. B. Schacht
___________________
H. B. Schacht
Director
<PAGE>
CUMMINS ENGINE COMPANY, INC.
POWER OF ATTORNEY
____________________________
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints Mark R. Gerstle and Kiran M. Patel and
each of them, with full power to act without the other, as his
true and lawful attorney-in-fact and agent, with full and several
powers of substitution and resubstitution for him in his name,
place and stead, in any and all capacities, to sign a shelf
Registration Statement on Form S-3 to be filed under the
Securities Act of 1933 by Cummins Engine Company, Inc. (the
"Corporation") in connection with the sale from time to time of
the Corporation's equity securities by (a) Investment Company of
America, (b) Fundamental Investors, Inc., and (c) The Northern
Trust Company as trustee of the Cummins Engine Company, Inc. and
Affiliates Collective Investment Trust, and any amendments
(including post-effective amendments) to such Registration
Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said 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 and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said 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.
Dated: March 29, 1996
/s/F. A. Thomas
_____________________
F. A. Thomas
Director
<PAGE>
CUMMINS ENGINE COMPANY, INC.
POWER OF ATTORNEY
____________________________
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints Mark R. Gerstle and Kiran M. Patel and
each of them, with full power to act without the other, as his
true and lawful attorney-in-fact and agent, with full and several
powers of substitution and resubstitution for him in his name,
place and stead, in any and all capacities, to sign a shelf
Registration Statement on Form S-3 to be filed under the
Securities Act of 1933 by Cummins Engine Company, Inc. (the
"Corporation") in connection with the sale from time to time of
the Corporation's equity securities by (a) Investment Company of
America, (b) Fundamental Investors, Inc., and (c) The Northern
Trust Company as trustee of the Cummins Engine Company, Inc. and
Affiliates Collective Investment Trust, and any amendments
(including post-effective amendments) to such Registration
Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said 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 and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said 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.
Dated: March 29, 1996
/s/J. Lawrence Wilson
_____________________
J. Lawrence Wilson
Director
EXHIBIT 99.1
CONSENT AND AGREEMENT dated as of March 7, 1996 among TENNECO
INC., a Delaware corporation ("Tenneco"), CUMMINS ENGINE COMPANY, INC., an
Indiana corporation (the "Company"), BANKERS TRUST COMPANY, as Trustee (the
"Tenneco Trustee") of the Tenneco Inc. General Employee Benefit Trust (the
Tenneco Trust") and The Investment Company of America, a Delaware
corporation ("ICA"), and Fundamental Investors, Inc., a Maryland
corporation ("FI").
WHEREAS, in connection with the acquisition by the Tenneco
Trustee of 3,200,000 shares of common stock of the Company (the "Cummins
Stock"), the Tenneco Trustee, pursuant to a Joinder in Agreement dated as
of December 29, 1993 became a party to a Investment Agreement dated as of
July 16, 1990 with the Company (as amended to date, the "Investment
Agreement");
WHEREAS, the Investment Agreement restricts the ability of the
Tenneco Trustee to transfer the Cummins Stock;
WHEREAS, the Tenneco Trustee desires to sell, and ICA and FI
desire to acquire, 1,458,200 shares of the Cummins Stock (the "Shares"), of
which 958,200 Shares will be acquired by ICA (the "ICA Shares") and 500,000
Shares will be acquired by FI (the "FI Shares"), at a purchase price of $40
per share;
WHEREAS, the Company is willing to consent to such transfer on
the terms and subject to the conditions herein set forth; and
WHEREAS, the parties to the Investment Agreement desire to make
certain other amendments to the Investment Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Purchase and Sale of the Shares. On the terms and
subject to the conditions of this Agreement, (i) the Tenneco Trustee shall
sell, transfer and deliver to ICA, and ICA shall purchase from the Tenneco
Trustee, the ICA Shares for an aggregate purchase price of $38,328,000 (the
"Aggregate ICA Purchase Price") and (ii) the Tenneco Trustee shall sell,
transfer and deliver to FI, and FI shall purchase from the Tenneco Trustee,
the FI Shares for an aggregate purchase $20,000,000 (the "Aggregate FI
Purchase Price"; together with the Aggregate ICA Purchase Price, the
"Aggregate Purchase Price").
The closing (the "Closing") of the purchase and sale of the
Shares shall be held at the office of Cravath, Swaine & Moore, Worldwide
Plaza, New York, NY on March 8, 1996 (the "Closing Date"). The Company
hereby consents to the transfer of the Shares. The transfer of the Shares
effected hereby shall not constitute an assignment of any of Tenneco's or
the Tenneco Trustee's rights under the Investment Agreement.
At the Closing, ICA and FI shall deliver to the Tenneco Trustee,
by wire transfer to a bank account designated by the Tenneco Trustee,
immediately available funds in an amount equal to the Aggregate ICA
Purchase Price and the Aggregate FI Purchase Price, respectively, and the
Tenneco Trustee shall deliver to First Chicago Trust Company, Newport
Tower, Third Floor, 525 Washington Blvd., Jersey City, NJ 07310 Attention:
Joseph Piotrowski a certificate or certificates representing the Shares,
together with stock powers duly executed in blank by the Tenneco Trustee.
As promptly as practicable, the Company shall give appropriate instructions
to the Company's stock transfer agent and registrar to take such action as
may be necessary on its part to effect the transfer and to register
ownership of the ICA Shares by ICA or its nominee and the FI Shares by FI
or its nominee in the stock records of the Company. The Company shall
cause the certificates representing the ICA Shares to be delivered to The
Chase Manhattan Bank, N.A. and the certificates representing the FI Shares
to be delivered to State Street Bank & Trust Co.
The certificate or certificates for the Shares issued to ICA and
FI shall have the following legend, which legend shall remain on such
certificates until such time as there is delivered to the Company an
opinion of counsel reasonably acceptable to the Company to the effect that
such legend is no longer required under the applicable requirements of the
Securities Act of 1933 or state securities or blue sky laws:
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND
MAY BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF ONLY IF SO
REGISTERED OR IF AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
SECTION 2. Representations and Warranties of the Tenneco
Trustee. The Tenneco Trustee hereby represents and warrants as follows:
(a) Authority. The Tenneco Trustee is a banking corporation
duly organized, validly existing and in good standing under the laws
of the State of New York. The Tenneco Trustee has all requisite
corporate power and authority, and has taken all required corporate
acts and other proceedings, to enter into this Agreement and to
consummate the transactions contemplated hereby. This Agreement has
been duly executed and delivered by the Tenneco Trustee. The
execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not,
conflict with, or result in any violation of, (i) any provision of the
charter or by-laws of the Tenneco Trustee or of the Tenneco Trust or
(ii) any material judgment, order, decree, statute, law (including the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")
and the Internal Revenue Code of 1986, as amended (the "Code")),
ordinance, rule or regulation applicable to the Tenneco Trustee or its
property or assets. No material consent, approval, order or
authorization of any court, administrative agency or other
governmental authority or instrumentality, domestic or foreign, is
required to be obtained or made by or with respect to the Tenneco
Trustee in connection with the execution and delivery of this
Agreement or the consummation by the Tenneco Trustee of the
transactions contemplated hereby.
(b) The Shares. The Tenneco Trustee has good and marketable
title to the Shares, free and clear of any claims, liens, encumbrances
or security interests whatsoever. At the Closing, good and marketable
title to the Shares will pass to ICA or FI, as the case may be, free
and clear of any claims, liens, encumbrances or security interests
whatsoever. The Shares are not subject to any voting trust agreement
or other contract, agreement, arrangement, commitment or understanding
restricting or otherwise relating to the voting, dividend rights or
disposition of the Shares.
THE TENNECO TRUSTEE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES,
ORAL OR WRITTEN, EXPRESS OR IMPLIED, CONCERNING THE SHARES OR THE
TRANSACTIONS CONTEMPLATED HEREUNDER.
SECTION 3. Representations and Warranties of ICA and FI. Each
of ICA and FI hereby represents and warrants as follows:
(a) Authority. It is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation. It has all requisite corporate power and authority,
and has taken all required corporate acts and other proceedings, to
enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by it. The execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated hereby will
not, conflict with, or result in any violation of or default under,
any provision of its charter or by-laws or any agreement, instrument,
license, judgment, order, decree, statute, law (including ERISA and
the Code), ordinance, rule or regulation applicable to it or its
property or assets. No material consent, approval, order or
authorization of any court, administrative agency or other
governmental authority or instrumentality, domestic or foreign, is
required to be obtained or made by or with respect to it in connection
with the execution and delivery of this Agreement or the consummation
by it of the transactions contemplated hereby.
(b) Securities Act. The Shares purchased by it pursuant to this
Agreement will be acquired for investment only and not with a view to
any public distribution thereof, and it will not offer to sell or
otherwise dispose of any Shares so acquired by it in violation of any
of the registration requirements of the Securities Act of 1933.
(c) Investment. It (i) has conducted such investigations as
it deems necessary or desirable in connection with the purchase of the
Shares, including without limitation reviewing copies of the Company's
filings with the Securities and Exchange Commission, (ii) acknowledges
that, except as set forth in Section 2 above, the Tenneco Trustee has
made no representations or warranties, oral or written, express or
implied, and (iii) accepts all risks of holding the Shares.
SECTION 4. Termination of Obligations under Section 3.1 of the
Investment Agreement. From and after the Closing, the Company shall not
have any obligations under Section 3.1 of the Investment Agreement, which
Section shall be deemed null and void.
SECTION 5. Board Representation. Notwithstanding Article IV of
the Investment Agreement, neither Tenneco nor the Tenneco Trustee shall be
required to request following the Closing the resignation of any person
then serving on the Board of Directors of the Company who shall have been
designated by Tenneco or the Tenneco Trustee.
SECTION 6. Conditions to Closing. (a) ICA and FI's
Obligations. The obligations of ICA and FI to purchase and pay for the
Shares are subject to the satisfaction (or waiver) as of the Closing of the
following conditions:
(i) The representations and warranties of the Tenneco Trustee
made in this Agreement shall be true and correct in all material
respects as of the Closing, and the Tenneco Trustee shall have
performed in all material respects the covenants of the Tenneco
Trustee contained in this Agreement required to be performed by the
time of the Closing; and the Tenneco Trustee shall have delivered to
ICA and FI a certificate dated the Closing Date and signed by an
authorized officer of the Tenneco Trustee confirming the foregoing.
(ii) No injunction or order of any court or administrative
agency of competent jurisdiction shall be in effect as of the Closing
which restrains or prohibits the purchase and sale of the Shares.
(b) The Tenneco Trustee's Obligations. The obligations of the
Tenneco Trustee to sell and deliver the Shares to ICA and FI are subject to
the satisfaction (or waiver) as of the Closing of the following conditions:
(i) The representations and warranties of ICA and FI made in
this Agreement shall be true and correct in all material respects as
of the Closing, and ICA and FI shall have performed in all material
respects the covenants of ICA and FI contained in this Agreement
required to be performed by the time of the Closing; and Capital
Research shall have delivered to the Tenneco Trustee a certificate
dated the Closing Date and signed by an authorized officer of Capital
Research and Management Company ("CRMC") confirming the foregoing and
stating that the execution by it of this Agreement is effective to
create a valid and legally binding obligation of ICA and FI.
(ii) No injunction or order of any court or administrative
agency of competent jurisdiction shall be in effect as of the Closing
which restrains or prohibits the purchase and sale of the Shares.
(iii) The Northern Trust Company, as trustee of the Cummins
Engine Company, Inc. and Affiliates Collective Investment Trust (the
"Cummins Trust"), shall have acquired (or be concurrently acquiring)
from the Tenneco Trustee 1,741,800 shares of the Cummins Stock (the
"Cummins Trust Shares") for an aggregate purchase price of
$69,672,000.
(iv) ICA shall have acquired (or be concurrently acquiring) from
the Tenneco Trustee the ICA Shares.
(v) FI shall have acquired (or be concurrently acquiring) from
the Tenneco Trustee the FI Shares.
(vi) CRMC shall have delivered to the Tenneco Trustee and the
Company a copy of the agreement or writings, certified by an officer
of CRMC to be true, correct, complete, and in full force and effect,
pursuant to which CRMC shall have been granted the authority to
execute and deliver this Agreement and effect the transactions
contemplated hereby for and on behalf of ICA and FI.
SECTION 7. Registration Rights.
(a) Defined Terms. As used in this Section 7, the following
terms shall have the meanings ascribed thereto below:
"Other Registrable Securities" means (i) the Cummins Trust Shares
and (ii) any securities issued or distributed in respect of any Cummins
Trust Shares by way of stock dividend or stock split or in connection with
a combination of shares, recapitalization, reorganization, merger,
consolidation or otherwise.
"Prospectus" means the prospectus included in the Registration
Statement, as amended or supplemented by any prospectus supplement with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement and by all other amendment
and supplements to the prospectus, including post-effective amendments and
all material incorporated by reference in such prospectus.
"Registrable Securities" means, collectively, (i) the Shares and
(ii) any securities issued or distributed in respect of any Shares by way
of stock dividend or stock split or in connection with a combination of
shares, recapitalization, reorganization, merger, consolidation or
otherwise.
"Registration Statement" means any registration statement of the
Company which covers Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to
such registration statement, including post-effective amendments, and all
exhibits and all material incorporated by reference in such Registration
Statement.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"SEC" means the Securities and Exchange Commission.
(b) Securities Subject to this Section 7. The securities
entitled to the benefits of this Section 7 are the Registrable Securities
held by ICA and FI and the Other Registrable Securities held by the Cummins
Trust. For the purpose of this Section 7, Registrable Securities will
cease to be Registrable Securities (i) when a Registration Statement
covering such Registrable Securities has been declared effective under the
Securities Act and they have been disposed of pursuant to such effective
Registration Statement, (ii) when such Registrable Securities are
distributed to the public pursuant to Rule 144 (or any similar provision
then in force) under the Securities Act, (iii) when such Registrable
Securities shall have been otherwise transferred, new certificates for such
Registrable Securities not bearing a legend restricting further transfer
shall have been delivered by the Company and subsequent disposition of such
Registrable Securities shall not require registration or qualification of
such Registrable Securities under the Securities Act or any state
securities or blue sky law then in force, (iv) on March 8, 1999 or (v) when
such Registrable Securities shall have ceased to be outstanding.
(c) Shelf Registration. As promptly as practicable after the
date hereof, the Company shall file and cause to be declared effective a
"shelf" Registration Statement on any appropriate form pursuant to Rule 415
(or similar rule that may be adopted by the SEC) under the Securities Act
for all the Registrable Securities and the Other Registrable Securities,
which form shall be available for the sale of the Registrable Securities
and the Other Registrable Securities in accordance with the intended
methods of distribution thereof. The Company agrees to use its best
efforts to keep such Registration Statement continuously effective and
usable for resale of Registrable Securities until March 8, 1999 or, if
sooner, until all the Registrable Securities covered by such Registration
Statement cease to be Registrable Securities; provided, however, that the
Company may elect that such Registration Statement not be usable during any
Blackout Period (as defined in (d) below).
(d) Blackout Period. The Company shall be entitled to elect
that the Registration Statement not be useable, for a reasonable period of
time, but not in excess of 90 days (a "Blackout Period"), if the Company
determines in good faith that the distribution of Registrable Securities
pursuant to the Registration Statement (or the use of the Registration
Statement or related Prospectus) would interfere with any pending
financing, acquisition, corporate reorganization or any other corporate
development involving the Company or any of its subsidiaries or would
require premature disclosure thereof and promptly gives ICA and FI written
notice of such determination, provided, however, that the aggregate number
of days included in all Blackout Periods during any consecutive 12 months
during the period from the date hereof until March 8, 1999 shall not exceed
180 days.
(e) Registration Procedures. In connection with any offering of
Shares to be registered pursuant to the terms hereof, the Company shall (i)
furnish to ICA and FI copies of any Prospectus (including any preliminary
prospectus) as may reasonably be requested in order to effect the offering
and sale of the securities to be offered and sold, but only while the
Company shall be required under the provisions hereof to cause the
Registration Statement to remain current and (ii) take such action as shall
be necessary to qualify the securities covered by such registration under
such blue sky or other state securities laws for offer and sale as ICA and
FI shall reasonably request; provided, however, that the Company shall not
be obligated to qualify as a foreign corporation to do business under the
laws of any jurisdiction in which it shall not then be qualified or to file
any general consent to service of process. If any offering pursuant to the
Registration Statement is an underwritten offering, the Company shall enter
into an underwriting agreement containing representations, warranties,
indemnities and agreements then customarily included by an issuer in
underwriting agreements with respect to secondary distributions. The
Company shall also enter into an agreement with ICA and FI providing for
indemnification of ICA and FI by the Company, and indemnification of the
Company by ICA and FI, on terms customary for such agreements at that time
(it being understood that any disputes arising as to what is so customary
shall be resolved by counsel to the underwriters). In connection with any
offering of Shares registered pursuant to the terms hereof, the Company
shall (x) furnish, at the Company's expense, unlegended certificates
representing ownership of the securities being sold in such denominations
as shall be requested and (y) instruct the transfer agent and registrar of
such securities to release any stop transfer orders with respect to the
securities being sold.
(f) Expenses. The Company shall pay all out-of-pocket expenses
incurred in connection with the Registration Statement, including, without
limitation, all SEC and blue sky registration and filing fees, printing
expenses, transfer agents' fees, registrar's fees, fees and disbursements
of the Company's counsel and accountants and fees and disbursements of
experts used by the Company in connection with such registration, except
that ICA and FI shall pay all underwriting discounts, commissions and
expenses, transfer taxes, and fees and expenses of their counsel and
accountants.
(g) Tenneco Trustee Not Liable. ICA, FI and the Company each
acknowledges and agrees that the obligations set forth in this Section 7
are those of the Company and that the Tenneco Trustee shall have no
obligation or liability whatsoever for any failure by the Company to meet
its obligations under this Section 7.
SECTION 8. Notices. Any notice or other communication required
or permitted to be given hereunder shall be in writing and shall be
effective (a) when personally delivered or delivered by telecopy on a
business day during normal business hours where such notice is to be
received at the address or number designated below or (b) on the business
day following the date of mailing by overnight courier fully prepaid,
addressed to such address, whichever shall first occur. The addresses for
such communications shall be:
If to the Company:
Cummins Engine Company, Inc.
500 Jackson Street
Box 3005, MC60701
Columbus, Indiana 47202-3005
Attention: General Counsel and Secretary
Telecopy: 812-377-3272
With a copy to:
Cummins Engine Company, Inc.
500 Jackson Street
Box 3005, MC60701
Columbus, Indiana 47202-3005
Attention: Chief Financial Officer
Telecopy: 812-377-3272
If to ICA or FI:
Capital Research and Management Company
333 South Hope Street
Los Angeles, CA 90071
Attention: James P. Ryan
Telecopy: 213-486-9041
If to the Tenneco Trustee:
Bankers Trust Company
3000 Two Houston Center
909 Fannin
Suite 3000
Houston, TX 77010
Attention:
Telecopy:
If to Tenneco:
Tenneco Inc.
P.O. Box 2511
Houston, TX
Attention: Richard A. Robinson
Telecopy: 713-651-1666
Any party hereto may from time to time change its address for
notices under this Section 8 by giving at least 10 days notice of such
changed address to the other parties hereto.
SECTION 9. Waivers. No waiver by any party of any default with
respect to any provision, condition or requirement hereof shall be deemed
to be a continuing waiver in the future thereof or a waiver of any other
provision, condition or requirement hereof nor shall any delay or omission
of any party to exercise any right hereunder in any manner impair the
exercise of any such right accruing to it thereafter.
SECTION 10. Headings. The headings herein are for convenience
only do not constitute a part of this Agreement and shall not be deemed to
limit or affect any of the provisions hereof.
SECTION 11. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties and their successors
and legal representatives. The parties hereto may amend this Agreement
without notice to or the consent of any third party. No party shall assign
this Agreement or any rights hereunder without the prior written consent of
the other parties (which consent may be withheld for any reason in the sole
discretion of the party from whom consent is sought). The assignment by a
party of this Agreement or any rights hereunder shall not affect the
obligations of such party under this Agreement.
SECTION 12. No Third Party Beneficiaries. This Agreement is
intended for the benefit of the parties hereto and their respective
permitted successors and assigns and is not for the benefit of nor may any
provision hereof be enforced by any other person.
SECTION 13. Governing Law. This Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the
State of Indiana without regard to the principles of conflict of laws.
SECTION 14. Counterparts. This Agreement may be executed in two
or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by
each party and delivered to the other parties, it being understood that all
parties need not sign the same counterparts.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of
the date hereof.
CUMMINS ENGINE COMPANY, INC.
by:
Name: _________________________
Title:
CAPITAL RESEARCH AND MANAGEMENT COMPANY
on behalf of:
The Investment Company of America and
Fundamental Investors, Inc.
by: ___________________________
Name:
Title:
BANKERS TRUST COMPANY, as
trustee of the Tenneco Inc.
General Employee Benefit Trust
by: _____________________________
Name:
Title:
The undesigned is executing this
Agreement solely for purposes of
Sections 4 and 5 hereof.
TENNECO INC.
by:
Name: _____________________________
Title:
EXHIBIT 99.2
CONSENT AND AGREEMENT dated as of March 7, 1996 among TENNECO
INC., a Delaware corporation ("Tenneco"), CUMMINS ENGINE COMPANY, INC.,
an Indiana corporation (the "Company"), BANKERS TRUST COMPANY, as Trustee
(the "Tenneco Trustee") of the Tenneco Inc. General Employee Benefit
Trust (the Tenneco Trust"), and THE NORTHERN TRUST COMPANY as Trustee
(the "Cummins Trustee") of the Cummins Engine Company, Inc. and
Affiliates Collective Investment Trust (the "Cummins Trust").
WHEREAS, in connection with the acquisition by the Tenneco
Trustee of 3,200,000 shares of common stock of the Company (the "Cummins
Stock"), the Tenneco Trustee, pursuant to a Joinder in Agreement dated as
of December 29, 1993 became a party to a Investment Agreement dated as of
July 16, 1990 with the Company (as amended to date, the "Investment
Agreement");
WHEREAS, the Investment Agreement restricts the ability of the
Tenneco Trustee to transfer the Cummins Stock;
WHEREAS, the Tenneco Trustee desires to sell, and, pursuant to
the direction of the Pension Policy Committee, the Cummins Trustee
desires to acquire on behalf of the Cummins Trust, 1,741,800 shares of
the Cummins Stock (the "Shares") at a purchase price of $40 per share;
WHEREAS, the Company is willing to consent to such transfer on
the terms and subject to the conditions herein set forth;
WHEREAS, the Company is willing to make a contribution of not
less than $69,672,000 to the Cummins Trust (the "Contribution") to enable
the Cummins Trust to acquire the Shares; and
WHEREAS, the parties to the Investment Agreement desire to make
certain other amendments to the Investment Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Purchase and Sale of the Shares. On the terms and
subject to the conditions of this Agreement, the Tenneco Trustee shall
sell, transfer and deliver to the Cummins Trustee, and the Cummins
Trustee shall purchase from the Tenneco Trustee, the Shares for an
aggregate purchase price of $69,672,000 (the "Aggregate Purchase Price").
The closing (the "Closing") of the purchase and sale of the
Shares shall be held at the office of Cravath, Swaine & Moore, Worldwide
Plaza, New York, NY on March 8, 1996 (the "Closing Date"). The Company
hereby consents to the transfer of the Shares. The transfer of the
Shares effected hereby shall not constitute an assignment of any of
Tenneco's or the Tenneco Trustee's rights under the Investment Agreement.
At the Closing, the Cummins Trustee shall deliver to the
Tenneco Trustee, by wire transfer to a bank account designated by the
Tenneco Trustee, immediately available funds in an amount equal to the
Aggregate Purchase Price and the Tenneco Trustee shall deliver to First
Chicago Trust Company, Newport Tower, Third Floor, 525 Washington Blvd.,
Jersey City, NJ 07310 Attention: Joseph Piotrowski a certificate or
certificates representing the Shares, together with stock powers duly
executed in blank by the Tenneco Trustee. As promptly as practicable,
the Company shall give appropriate instructions to the Company's stock
transfer agent and registrar to take such action as may be necessary on
its part to effect the transfer and to register ownership of the Shares
by the Cummins Trustee or its nominee in the stock records of the
Company. The Company shall cause the certificates representing the
Shares to be delivered to the Cummins Trustee at the Closing.
The certificate or certificates for the Shares issued to the
Cummins Trustee shall have the following legend, which legend shall
remain on such certificates until such time as there is delivered to the
Company an opinion of counsel reasonably acceptable to the Company to the
effect that such legend is no longer required under the applicable
requirements of the Securities Act of 1933 or state securities or blue
sky laws:
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND
MAY BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF ONLY IF SO
REGISTERED OR IF AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
SECTION 2. Representations and Warranties of the Tenneco
Trustee. The Tenneco Trustee hereby represents and warrants as follows:
(a) Authority. The Tenneco Trustee is a banking corporation
duly organized, validly existing and in good standing under the laws
of the State of New York. The Tenneco Trustee has all requisite
corporate power and authority, and has taken all required corporate
acts and other proceedings, to enter into this Agreement and to
consummate the transactions contemplated hereby. This Agreement has
been duly executed and delivered by the Tenneco Trustee. The
execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not,
conflict with, or result in any violation of, (i) any provision of
the charter or by-laws of the Tenneco Trustee or of the Tenneco
Trust or (ii) any material judgment, order, decree, statute, law
(including the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") and the Internal Revenue Code of 1986, as amended
(the "Code")), ordinance, rule or regulation applicable to the
Tenneco Trustee or its property or assets. No material consent,
approval, order or authorization of any court, administrative agency
or other governmental authority or instrumentality, domestic or
foreign, is required to be obtained or made by or with respect to
the Tenneco Trustee in connection with the execution and delivery of
this Agreement or the consummation by the Tenneco Trustee of the
transactions contemplated hereby.
(b) The Shares. The Tenneco Trustee has good and marketable
title to the Shares, free and clear of any claims, liens,
encumbrances or security interests whatsoever. At the Closing, good
and marketable title to the Shares will pass to the Cummins Trustee,
free and clear of any claims, liens, encumbrances or security
interests whatsoever. The Shares are not subject to any voting
trust agreement or other contract, agreement, arrangement,
commitment or understanding restricting or otherwise relating to the
voting, dividend rights or disposition of the Shares.
THE TENNECO TRUSTEE MAKES NO OTHER REPRESENTATIONS OR
WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, CONCERNING THE SHARES OR
THE TRANSACTIONS CONTEMPLATED HEREUNDER.
SECTION 3. Representations and Warranties of the Cummins
Trustee. The Cummins Trustee hereby represents and warrants as follows:
(a) Authority. The Cummins Trustee is a banking corporation
duly organized, validly existing and in good standing under the laws
of Illinois. The Cummins Trustee has all requisite corporate power
and authority, and has taken all required corporate acts and other
proceedings, to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly
executed and delivered by the Cummins Trustee. The execution and
delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby will not, conflict with, or result
in any violation of or default under, any provision of the charter
or by-laws of the Cummins Trustee and the Pension Policy Committee
has represented to the Cummins Trustee that the execution and
delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby will not, conflict with, or result
in violation of or default under any provision of the Cummins Engine
Company, Inc. and Affiliates Collective Investment Trust Agreement
or any agreement, instrument, license, judgment, order, decree,
statute, law (including ERISA and the Code), ordinance, rule or
regulation applicable to the Cummins Trustee or its property or
assets. No material consent, approval, order or authorization of
any court, administrative agency or other governmental authority or
instrumentality, domestic or foreign, is required to be obtained or
made by or with respect to the Cummins Trustee in connection with
the execution and delivery of this Agreement or the consummation by
the Cummins Trustee of the transactions contemplated hereby.
(b) Securities Act. The Pension Policy Committee has
represented to the Cummins Trustee that the Shares purchased by the
Cummins Trustee pursuant to this Agreement will be acquired for
investment only and not with a view to any public distribution
thereof, and the Cummins Trustee will not offer to sell or otherwise
dispose of any Shares so acquired by it in violation of any of the
registration requirements of the Securities Act of 1933.
(c) Investment. The Pension Policy Committee has
represented to the Cummins Trustee that (i) it has conducted such
investigations as it deems necessary or desirable in connection with
the purchase of the Shares, including without limitation reviewing
copies of the Company's filings with the Securities and Exchange
Commission, (ii) except as set forth in Section 2 above, the Tenneco
Trustee has made no representations or warranties, oral or written,
express or implied, and (iii) as between it and the Tenneco Trustee,
it accepts all risks associated with the purchase of the Shares.
SECTION 4. Termination of Obligations under Section 3.1 of the
Investment Agreement. From and after the Closing, the Company shall not
have any obligations under Section 3.1 of the Investment Agreement, which
Section shall be deemed null and void.
SECTION 5. Board Representation. Notwithstanding Article IV
of the Investment Agreement, neither Tenneco nor the Tenneco Trustee
shall be required to request following the Closing the resignation of any
person then serving on the Board of Directors of the Company who shall
have been designated by Tenneco or the Tenneco Trustee.
SECTION 6. Company's Covenant to Make Contribution. If all
the other conditions to the Closing have been satisfied or waived, the
Company shall make the Contribution at the Closing in order to permit the
Cummins Trustee to purchase the Shares.
SECTION 7. Conditions to Closing. (a) Cummins Trustee's
Obligations. The obligations of the Cummins Trustee to purchase and pay
for the Shares are subject to the satisfaction (or waiver) as of the
Closing of the following conditions:
(i) The representations and warranties of the Tenneco Trustee
made in this Agreement shall be true and correct in all material
respects as of the Closing, and the Tenneco Trustee shall have
performed in all material respects the covenants of the Tenneco
Trustee contained in this Agreement required to be performed by the
time of the Closing; and the Tenneco Trustee shall have delivered to
the Cummins Trustee a certificate dated the Closing Date and signed
by an authorized officer of the Tenneco Trustee confirming the
foregoing.
(ii) No injunction or order of any court or administrative
agency of competent jurisdiction shall be in effect as of the
Closing which restrains or prohibits the purchase and sale of the
Shares.
(iii) The Cummins Trustee shall have received the
Contribution.
(b) The Tenneco Trustee's Obligations. The obligations of the
Tenneco Trustee to sell and deliver the Shares to the Cummins Trustee are
subject to the satisfaction (or waiver) as of the Closing of the
following conditions:
(i) The representations and warranties of the Cummins Trustee
made in this Agreement shall be true and correct in all material
respects as of the Closing, and the Cummins Trustee shall have
performed in all material respects the covenants of the Cummins
Trustee contained in this Agreement required to be performed by the
time of the Closing; and the Cummins Trustee shall have delivered to
the Tenneco Trustee a certificate dated the Closing Date and signed
by an authorized officer of the Cummins Trustee confirming the
foregoing.
(ii) No injunction or order of any court or administrative
agency of competent jurisdiction shall be in effect as of the
Closing which restrains or prohibits the purchase and sale of the
Shares.
(iii) The Investment Company of America ("ICA") and Fundamental
Investors, Inc. ("FI") (collectively, "Capital Research"), shall
have acquired (or be concurrently acquiring) from the Tenneco
Trustee 1,458,200 shares of the Cummins Stock (the "Capital Research
Shares") for an aggregate purchase price of $58,328,000.
SECTION 8. Registration Rights.
(a) Defined Terms. As used in this Section 8, the following
terms shall have the meanings ascribed thereto below:
"Other Registrable Securities" means (i) the Capital Research
Shares and (ii) any securities issued or distributed in respect of any
Capital Research Shares by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization,
reorganization, merger, consolidation or otherwise.
"Prospectus" means the prospectus included in the Registration
Statement, as amended or supplemented by any prospectus supplement with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement and by all other
amendment and supplements to the prospectus, including post-effective
amendments and all material incorporated by reference in such prospectus.
"Registrable Securities" means, collectively, (i) the Shares
and (ii) any securities issued or distributed in respect of any Shares by
way of stock dividend or stock split or in connection with a combination
of shares, recapitalization, reorganization, merger, consolidation or
otherwise.
"Registration Statement" means any registration statement of
the Company which covers Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective
amendments, and all exhibits and all material incorporated by reference
in such Registration Statement.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"SEC" means the Securities and Exchange Commission.
(b) Securities Subject to this Section 8. The securities
entitled to the benefits of this Section 8 are the Registrable Securities
held by the Cummins Trust and the Other Registrable Securities held by
ICA and FI. For the purpose of this Section 8, Registrable Securities
will cease to be Registrable Securities (i) when a Registration Statement
covering such Registrable Securities has been declared effective under
the Securities Act and they have been disposed of pursuant to such
effective Registration Statement, (ii) when such Registrable Securities
are distributed to the public pursuant to Rule 144 (or any similar
provision then in force) under the Securities Act, (iii) when such
Registrable Securities shall have been otherwise transferred, new
certificates for such Registrable Securities not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of such Registrable Securities shall not require
registration or qualification of such Registrable Securities under the
Securities Act or any state securities or blue sky law then in force,
(iv) on March 8, 1999 or (v) when such Registrable Securities shall have
ceased to be outstanding.
(c) Shelf Registration. As promptly as practicable after the
date hereof, the Company shall file and cause to be declared effective a
"shelf" Registration Statement on any appropriate form pursuant to
Rule 415 (or similar rule that may be adopted by the SEC) under the
Securities Act for all the Registrable Securities and the Other
Registrable Securities, which form shall be available for the sale of the
Registrable Securities and the Other Registrable Securities in accordance
with the intended methods of distribution thereof. The Company agrees to
use its best efforts to keep such Registration Statement continuously
effective and usable for resale of Registrable Securities until March 8,
1999 or, if sooner, until all the Registrable Securities covered by such
Registration Statement cease to be Registrable Securities; provided,
however, that the Company may elect that such Registration Statement not
be usable during any Blackout Period (as defined in (d) below).
(d) Blackout Period. The Company shall be entitled to elect
that the Registration Statement not be useable, for a reasonable period
of time, but not in excess of 90 days (a "Blackout Period"), if the
Company determines in good faith that the distribution of Registrable
Securities pursuant to the Registration Statement (or the use of the
Registration Statement or related Prospectus) would interfere with any
pending financing, acquisition, corporate reorganization or any other
corporate development involving the Company or any of its subsidiaries or
would require premature disclosure thereof and promptly gives the Cummins
Trustee written notice of such determination; provided, however, that the
aggregate number of days included in all Blackout Periods during any
consecutive 12 months during the period from the date hereof until
March 8, 1999 shall not exceed 180 days.
(e) Registration Procedures. In connection with any offering
of Shares to be registered pursuant to the terms hereof, the Company
shall (i) furnish to the Cummins Trustee copies of any Prospectus
(including any preliminary prospectus) as may reasonably be requested in
order to effect the offering and sale of the securities to be offered and
sold, but only while the Company shall be required under the provisions
hereof to cause the Registration Statement to remain current and (ii)
take such action as shall be necessary to qualify the securities covered
by such registration under such blue sky or other state securities laws
for offer and sale as the Cummins Trustee shall reasonably request;
provided, however, that the Company shall not be obligated to qualify as
a foreign corporation to do business under the laws of any jurisdiction
in which it shall not then be qualified or to file any general consent to
service of process. If any offering pursuant to the Registration
Statement is an underwritten offering, the Company shall enter into an
underwriting agreement containing representations, warranties,
indemnities and agreements then customarily included by an issuer in
underwriting agreements with respect to secondary distributions. The
Company shall also enter into an agreement with the Cummins Trustee
providing for indemnification of the Cummins Trustee by the Company, and
indemnification of the Company by the Cummins Trustee (to the extent
permitted by law), on terms customary for such agreements at that time
(it being understood that any disputes arising as to what is so customary
shall be resolved by counsel to the underwriters). In connection with
any offering of Shares registered pursuant to the terms hereof, the
Company shall (x) furnish, at the Company's expense, unlegended
certificates representing ownership of the securities being sold in such
denominations as shall be requested and (y) instruct the transfer agent
and registrar of such securities to release any stop transfer orders with
respect to the securities being sold.
(f) Expenses. The Company shall pay all out-of-pocket expenses
incurred in connection with the Registration Statement, including,
without limitation, all SEC and blue sky registration and filing fees,
printing expenses, transfer agents' fees, registrar's fees, fees and
disbursements of the Company's counsel and accountants and fees and
disbursements of experts used by the Company in connection with such
registration, except that the Cummins Trustee shall pay all underwriting
discounts, commissions and expenses, transfer taxes, and fees and
expenses of its counsel and accountants.
(g) Tenneco Trustee Not Liable. The Cummins Trustee and the
Company each acknowledges and agrees that the obligations set forth in
this Section 8 are those of the Company and that the Tenneco Trustee
shall have no obligation or liability whatsoever for any failure by the
Company to meet its obligations under this Section 8.
SECTION 9. Notices. Any notice or other communication
required or permitted to be given hereunder shall be in writing and shall
be effective (a) when personally delivered or delivered by telecopy on a
business day during normal business hours where such notice is to be
received at the address or number designated below or (b) on the business
day following the date of mailing by overnight courier fully prepaid,
addressed to such address, whichever shall first occur. The addresses
for such communications shall be:
If to the Company:
Cummins Engine Company, Inc.
500 Jackson Street
Box 3005, MC60701
Columbus, Indiana 47202-3005
Attention: General Counsel and Secretary
Telecopy: 812-377-3272
With a copy to:
Cummins Engine Company, Inc.
500 Jackson Street
Box 3005, MC60701
Columbus, Indiana 47202-3005
Attention: Chief Financial Officer
Telecopy: 812-377-3272
If to the Cummins Trustee:
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 90071
Attention: John St. Laurent
Telecopy: 312-444-5828
If to the Tenneco Trustee:
Bankers Trust Company
3000 Two Houston Center
909 Fannin
Suite 3000
Houston, TX 77010
Attention:
Telecopy:
If to Tenneco:
Tenneco Inc.
P.O. Box 2511
Houston, TX
Attention: Richard A. Robinson
Telecopy: 713-651-1666
Any party hereto may from time to time change its address for
notices under this Section 9 by giving at least 10 days notice of such
changed address to the other parties hereto.
SECTION 10. Waivers. No waiver by any party of any default
with respect to any provision, condition or requirement hereof shall be
deemed to be a continuing waiver in the future thereof or a waiver of any
other provision, condition or requirement hereof nor shall any delay or
omission of any party to exercise any right hereunder in any manner
impair the exercise of any such right accruing to it thereafter.
SECTION 11. Headings. The headings herein are for convenience
only do not constitute a part of this Agreement and shall not be deemed
to limit or affect any of the provisions hereof.
SECTION 12. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties and their successors
and legal representatives. The parties hereto may amend this Agreement
without notice to or the consent of any third party. No party shall
assign this Agreement or any rights hereunder without the prior written
consent of the other parties (which consent may be withheld for any
reason in the sole discretion of the party from whom consent is sought).
The assignment by a party of this Agreement or any rights hereunder shall
not affect the obligations of such party under this Agreement.
SECTION 13. No Third Party Beneficiaries. This Agreement is
intended for the benefit of the parties hereto and their respective
permitted successors and assigns and is not for the benefit of nor may
any provision hereof be enforced by any other person.
SECTION 14. Governing Law. This Agreement shall be governed
by and construed and enforced in accordance with the internal laws of the
State of Indiana without regard to the principles of conflict of laws.
SECTION 15. Counterparts. This Agreement may be executed in
two or more counterparts, all of which shall be considered one and the
same agreement and shall become effective when counterparts have been
signed by each party and delivered to the other parties, it being
understood that all parties need not sign the same counterparts.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as
of the date hereof.
CUMMINS ENGINE COMPANY, INC.
by: _________________________
Name:
Title:
THE NORTHERN TRUST COMPANY,
as Trustee of the
Cummins Engine Company, Inc.
and Affiliates Collective
Investment Trust Agreement
by: _________________________
Name:
Title:
BANKERS TRUST COMPANY, as
trustee of the Tenneco Inc.
General Employee Benefit Trust
by: __________________________
Name:
Title:
The undersigned is executing
this Agreement solely for
purposes of Section 4 and 5 hereof.
TENNECO INC.
by: _____________________________
Name:
Title:
