<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 10, 1996
REGISTRATION NO. 333-02281
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
________________________
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________
WEATHERFORD ENTERRA, INC.
(Exact name of registrant
as specified in its charter)
DELAWARE 74-1681642
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
________________________
1360 POST OAK BOULEVARD, SUITE 1000
HOUSTON, TEXAS 77056
(713) 439-9400
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
________________________
H. SUZANNE THOMAS
SENIOR VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
WEATHERFORD ENTERRA, INC.
1360 POST OAK BOULEVARD, SUITE 1000
HOUSTON, TEXAS 77056
(713) 439-9400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
CHARLES L. STRAUSS T. MARK KELLY
FULBRIGHT & JAWORSKI L.L.P. VINSON & ELKINS L.L.P.
1301 MCKINNEY, SUITE 5100 1001 FANNIN, SUITE 2300
HOUSTON, TEXAS 77010-3095 HOUSTON, TEXAS 77002-6760
(713) 651-5151 (713) 758-2222
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable 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, 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. [ ]
__________________________
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> 2
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* *
* Information contained herein is subject to completion or amendment. A *
* registration statement relating to these securities has been filed *
* with the Securities and Exchange Commission. These securities may not *
* be sold nor may offers to buy be accepted prior to the time the *
* registration statement becomes effective. This prospectus shall not *
* constitute an offer to sell or the solicitation of an offer to buy *
* nor shall there be any sale of these securities in any State in which *
* such offer, solicitation or sale would be unlawful prior to *
* registration or qualification under the securities laws of any such *
* State. *
* *
***************************************************************************
SUBJECT TO COMPLETION DATED MAY 10, 1996
Prospectus
$300,000,000
WEATHERFORD ENTERRA, INC.
Debt Securities
_______________
Weatherford Enterra, Inc. (the "Company" or "Weatherford") may offer
and sell from time to time, in one or more series, its unsecured debt
securities consisting of notes, debentures or other evidences of indebtedness
(the "Securities") with an aggregate initial offering price not to exceed
$300,000,000 or, if applicable, the equivalent thereof in any other currency or
currency unit, on terms to be determined at the time of offering. The specific
designation, aggregate principal amount, maturity, rate (or method of
determining the same) and time of payment of interest, premium, if any,
purchase price, any terms in addition to or different from those described
herein for redemption or repurchase, the names of and the principal amounts to
be purchased by or through agents, dealers or underwriters, if any, the
compensation of such persons and other special terms in connection with the
offering and sale of the series of Securities in respect of which this
Prospectus is being delivered are set forth in the accompanying Prospectus
Supplement (the "Prospectus Supplement"). The Securities will be effectively
subordinated to all obligations of the subsidiaries of the Company.
Consequently, the rights of the Company to receive assets of any subsidiary (and
thus the ability of holders of Securities to benefit indirectly from such
assets) are subject to the prior claims of creditors of that subsidiary. As of
March 31, 1996, $17.0 million of the Company's total debt was indebtedness of
subsidiaries, and such subsidiaries may incur additional indebtedness in the
future. The Securities will be general unsecured obligations of the Company
and will rank pari passu with the Company's existing and future unsecured and
unsubordinated indebtedness. As of March 31, 1996, the amount of the Company's
total unsecured and unsubordinated indebtedness with which the Securities would
have been pari passu was $313.5 million.
__________________
The Company may sell Securities to or through underwriters and also
may sell Securities directly to other purchasers or through agents. The
accompanying Prospectus Supplement sets forth the names of any underwriters or
agents involved in the sale of the Securities in respect of which this
Prospectus is being delivered, the principal amounts, if any, to be purchased
by underwriters and the compensation, if any, of such underwriters or agents.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
__________________
This Prospectus may not be used to consummate sales of the Securities
unless accompanied by a Prospectus Supplement.
The date of this Prospectus is , 1996.
<PAGE> 3
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS, IF ANY, MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES
OF THE SECURITIES OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE
PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED IN THE
OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR
THE ACCOMPANYING PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFERING MADE
HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR BY ANY OTHER PERSON.
THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY THE SECURITIES OFFERED BY
THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT IN ANY JURISDICTION
WHERE, OR TO ANY PERSON WHOM, IT IS UNLAWFUL TO MAKE SUCH AN OFFER OR
SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT NOR ANY DISTRIBUTION OF SECURITIES MADE HEREUNDER OR THEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF OR THAT
THE INFORMATION CONTAINED IN THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS
SUPPLEMENT IS CORRECT AS OF ANY TIME SUBSEQUENT TO THEIR RESPECTIVE DATES.
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 can
be inspected at the Public Reference Section of the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and the
regional offices of the Commission at Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661, and Seven World Trade
Center, New York, New York 10048. They also may be inspected at the offices of
the New York Stock Exchange, 20 Broad Street, New York, New York 10005. Copies
of such material may be obtained from the Public Reference Section of the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, at prescribed rates.
The Company has filed with the Commission a Registration Statement on
Form S-3 (herein, together with all amendments and exhibits thereto, referred
to as the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the securities offered hereby.
This Prospectus constitutes the prospectus of the Company filed as part of the
Registration Statement and does not contain all the information contained in
the Registration Statement, certain portions of which are omitted as permitted
by the rules and regulations of the Commission. For further information with
respect to the Company and the securities offered hereby, reference is made to
the Registration Statement, including the exhibits thereto, which may be
inspected at the Commission's offices, without charge, or copies of which may
be obtained from the Commission upon payment of prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed with the Commission are
incorporated by reference herein:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995.
(b) The Company's Current Report on Form 8-K dated December 29,
1995, as amended by the Company's Current Report on Form 8-K/A
dated February 27, 1996.
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996.
All documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and before the termination of the offering made hereby shall be
deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in
this Prospectus or in a document incorporated by reference in this Prospectus
shall be deemed modified or superseded for purposes of this
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Prospectus to the extent that a statement contained in this Prospectus or in
any other subsequently filed document that also is or is deemed to be
incorporated by reference herein or in the accompanying Prospectus Supplement
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 undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, upon the written or oral
request of any such person, a copy of any or all of the documents incorporated
by reference herein, other than the exhibits to such documents, unless such
exhibits are specifically incorporated by reference into the information that
this Prospectus incorporates. Written or oral requests for such copies should
be directed to Weatherford Enterra, Inc., 1360 Post Oak Boulevard, Suite 1000,
Houston, Texas 77056, Attention: Investor Relations, telephone number (713)
439-9400.
THE COMPANY
The Company is a diversified international energy service and
manufacturing company that provides a variety of services and equipment to the
exploration, production and transmission sectors of the oil and gas industry.
The Company's principal business segments include (i) the oilfield services
segment, which consists of renting specialized oilfield equipment, providing
fishing, well control assistance and other downhole services and related tools,
and providing tubular running services and related tools; (ii) the energy
products and services segment, which consists of manufacturing, selling and
servicing a variety of products, including cementation products, power
equipment, fishing and milling tools and heavy wall drill pipe, gas lift
valves, production and service packers and related equipment, electrical and
instrumentation control systems and pedestal-mounted marine cranes; (iii) the
gas compression segment, which consists of manufacturing, packaging, selling,
renting and servicing reciprocating natural gas compressors; and (iv) the
pipeline services segment, which consists of manufacturing, selling and renting
specialized pipeline equipment and services. The Company operates in virtually
every oil and gas exploration and production region in the world, with more
than 330 locations in 47 countries, including the United States.
USE OF PROCEEDS
Unless otherwise provided in the Prospectus Supplement accompanying
this Prospectus, the net proceeds from the sale of the Securities offered by
this Prospectus and the Prospectus Supplement will be added to the Company's
general funds and used for repayment of debt or other general corporate
purposes. Until so utilized, it is expected that such net proceeds will be
placed in interest bearing time deposits or invested in short-term marketable
securities. Any allocation of the net proceeds of any offering of Securities
to a specific purpose will be determined at the time of such offering and will
be described in the related Prospectus Supplement.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratios of
earnings to fixed charges for the periods shown.
<TABLE>
<CAPTION>
Three Months Ended Year Ended December 31,
March 31, ---------------------------------------------------------------
1996 1995 1994 1993 1992 1991
- ------------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
4.11 * 5.28 6.79 6.76 5.02
</TABLE>
* Earnings were inadequate to cover fixed charges by $14,985,000. The 1995
ratio of earnings to fixed charges for the Company, excluding the effect of
acquisition-related costs and other unusual charges incurred in 1995, was
4.34.
For the purposes of computing the ratio of earnings to fixed charges,
"earnings" have been calculated by adding to net income (i) income tax
provision (benefit), (ii) undistributed earnings of affiliates and (iii) fixed
charges. "Fixed charges" consist of interest expense, whether capitalized or
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expensed, and one-third of rental expense, which the Company considers
representative of the interest element of rentals.
DESCRIPTION OF THE SECURITIES
The Securities will be issued under an indenture (the "Indenture")
between the Company, as issuer, and Bank of Montreal Trust Company, as trustee
(the "Trustee"), a copy of which is filed as an exhibit to the Registration
Statement of which this Prospectus is a part. The terms of the Securities
include those stated in the Indenture and those made a part of the Indenture by
reference to the Trust Indenture Act of 1939 as in effect on the date of the
Indenture (the "Trust Indenture Act"). The statements and definitions of terms
under this caption relating to the Securities and the Indenture are subject to
all such terms and are summaries and do not purport to be complete. Such
summaries make use of certain terms defined in the Indenture and are qualified
by express reference to the Indenture. Wherever particular Sections of the
Indenture or terms not defined herein that are defined in the Indenture are
referred to herein or in a Prospectus Supplement, it is intended that such
Sections or defined terms shall be incorporated by reference herein or therein,
as the case may be.
The Securities may be issued from time to time in one or more series.
The following description of the Securities sets forth certain general terms
and provisions of the Securities of all series. The particular terms of each
series of Securities offered by any Prospectus Supplement will be described in
the Prospectus Supplement relating to such series.
GENERAL
The Indenture does not limit the amount of Securities, debentures,
notes or other evidences of indebtedness that may be issued by the Company or
any of its subsidiaries, nor does the Indenture restrict transactions between
the Company and its affiliates or dividends and other distributions by the
Company to its stockholders. In addition, other than as set forth under
"--Limitation on Liens" and "--Limitation on Sale/Leaseback Transactions",
there are no provisions of the Indenture that afford holders of the Securities
protection in the event of either a change in control of the Company or a
highly leveraged transaction involving the Company.
Securities may be issued under the Indenture from time to time in
separate series up to an aggregate amount from time to time authorized by the
Company for such series. The Securities will be unsecured obligations of the
Company and will rank on a parity with all other unsecured and unsubordinated
indebtedness of the Company unless the Company is required to secure the
Securities pursuant to the Indenture provisions described below under
"--Limitation on Liens".
The applicable Prospectus Supplement relating to any Securities will
describe the following terms of the Securities: (1) the title of the
Securities; (2) any limit on the aggregate principal amount of the Securities;
(3) whether the Securities are to be issuable as Registered Securities or
Bearer Securities, or both, whether any of the Securities are to be issuable
initially in temporary global form and whether any of the Securities are to be
in permanent global form; (4) the price or prices (expressed as a percentage of
the aggregate principal amount thereof) at which the Securities will be issued;
(5) the date or dates on which the Securities will mature; (6) the rate or
rates per annum (or the method by which such will be determined) at which the
Securities will bear interest, if any, and the date or dates from which any
such interest will accrue and whether, and under what circumstances, additional
amounts with respect to the Securities shall be payable; (7) the Interest
Payment Dates on which any such interest on the Securities will be payable, the
Regular Record Date for any interest payable on any Securities that are
Registered Securities on any Interest Payment Date and the extent to which, or
the manner in which, any interest payable on a temporary global Security on an
Interest Payment Date will be paid; (8) any mandatory or optional sinking fund
or analogous provisions; (9) each office or agency where, subject to the terms
of the Indenture as described below under "--Payment and Paying Agents", the
principal of and any premium and interest on the Securities will be payable and
each office or agency where, subject to the terms of the Indenture as described
below under "--Form, Exchange, Registration and Transfer", the Securities may
be presented for registration of transfer or exchange; (10) the right, if any,
or obligation, if any, of the Company to redeem the Securities and the period
or periods, if any, within which and the price or prices at which the
Securities may, pursuant to any optional or mandatory redemption provisions, be
redeemed, in whole or in part, and the other detailed terms and provisions of
any such optional or
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<PAGE> 6
mandatory redemption; (11) the denominations in which any Securities which are
Registered Securities will be issuable, if other than in denominations of
$1,000 and any integral multiple thereof, and the denomination or denominations
in which any Securities which are Bearer Securities will be issuable, if other
than in denominations of $5,000; (12) the currency or currencies (including
composite currencies) in which payment of principal of and any premium and
interest on the Securities is payable; (13) any index used to determine the
amount of payments of principal of and any premium and interest on the
Securities; (14) information with respect to book-entry procedures, if any; and
(15) any other terms of the Securities not inconsistent with the provisions of
the Indenture. (Section 301) Any such Prospectus Supplement also will describe
any special provisions for payment of additional amounts with respect to the
Securities.
Securities may be issued as Original Issue Discount Securities. An
Original Issue Discount Security is a Security that is issued at a price lower
than the amount payable upon the Stated Maturity thereof and that provides that
upon redemption or acceleration of the maturity thereof an amount less than the
amount payable upon the Stated Maturity thereof and determined in accordance
with the terms of such Security shall become due and payable. Special United
States federal income tax considerations applicable to Securities issued at an
original issue discount, including Original Issue Discount Securities, and
special United States tax considerations and other terms and restrictions
applicable to any Securities that are issued in bearer form, offered
exclusively to United States Aliens or denominated in other than United States
dollars, will be set forth in any Prospectus Supplement relating thereto.
The Securities will be general unsecured obligations of the Company
and will rank pari passu with the Company's existing and future unsecured and
unsubordinated indebtedness. Accordingly, the ability of the Company to meet
its obligations under the Indenture and the Securities will be dependent on the
earnings and cash flows of its subsidiaries and the ability of its subsidiaries
to pay dividends or to advance funds to the Company. As of March 31, 1996, the
amount of the Company's total unsecured and unsubordinated indebtedness with
which the Securities would have been pari passu was $313.5 million.
The Company is a holding company, conducting substantially all of its
business through subsidiaries, and the Indenture does not restrict the
incurrence of debt by such subsidiaries. The Securities will be effectively
subordinated to all obligations of such subsidiaries. Consequently, the rights
of the Company to receive assets of any subsidiary (and thus the ability of
holders of Securities to benefit indirectly from such assets) are subject to
the prior claims of creditors of that subsidiary. As of March 31, 1996,
$17.0 million of the Company's total debt was indebtedness of subsidiaries, and
such subsidiaries may incur additional indebtedness in the future.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Securities of a series may be issuable in definitive form solely as
Registered Securities, solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Unless otherwise indicated in an applicable
Prospectus Supplement, Bearer Securities will have interest coupons attached.
The Indenture provides that Securities of a series may be issuable in temporary
or permanent global form. (Section 201)
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor. In addition, if Securities of any
series are issuable as both Registered Securities and Bearer Securities, at the
option of the Holder, subject to the terms of the Indenture, Bearer Securities
(with all unmatured coupons, except as provided below, and all matured coupons
in default) of such series will be exchangeable for Registered Securities of
the same series of any authorized denominations and of a like aggregate
principal amount and tenor. Bearer Securities surrendered in exchange for
Registered Securities between a Regular Record Date or a Special Record Date
and the relevant date for payment of interest shall be surrendered without the
coupon relating to such date for payment of interest, and interest accrued as
of such date will not be payable in respect of the Registered Security issued
in exchange for such Bearer Security, but will be payable only to the Holder of
such coupon, when due in accordance with the terms of the Indenture. Bearer
Securities will not be issued in exchange for Registered Securities. (Section
305)
Securities may be presented for exchange as provided above, and
Registered Securities may be presented for registration or transfer (with the
form of transfer endorsed thereon duly executed), at the office of the Security
Registrar or at the office of any transfer agent designated by the Company for
such
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<PAGE> 7
purpose with respect to any series of Securities and referred to in an
applicable Prospectus Supplement, without service charge and upon payment of
any taxes and other governmental charges as described in the Indenture. Such
transfer or exchange will be effected upon the Security Registrar or any such
transfer agent, as the case may be, being satisfied with the documents of title
and identity of the person making the request. The Company shall serve
initially as Security Registrar. (Section 305) If a Prospectus Supplement
refers to any transfer agent (in addition to the Security Registrar) initially
designated by the Company with respect to any series of Securities, the Company
may at any time rescind the designation of any such transfer agent or approve a
change in the location through which any such transfer agent acts, except that,
if Securities of a series are issuable solely as Registered Securities, the
Company will be required to maintain a transfer agent in each Place of Payment
for such series and, if Securities of a series are issuable as Bearer
Securities, the Company will be required to maintain (in addition to the
Security Registrar) a transfer agent in a Place of Payment for such series
located outside the United States. The Company may at any time designate
additional transfer agents with respect to any series of Securities. (Section
1002)
In the event of any redemption in part, the Company shall not be
required to (i) issue, register the transfer of or exchange Securities of any
series during a period beginning at the opening of business 15 days prior to
the selection of Securities of that series for redemption and ending on the
close of business on (A) if Securities of the series are issuable only as
Registered Securities, the day of mailing of the relevant notice of redemption
and (B) if Securities of the series are issuable as Bearer Securities, the day
of the first publication of the relevant notice of redemption, or, if
Securities of the series also are issuable as Registered Securities and there
is no publication, the mailing of the relevant notice of redemption; (ii)
register the transfer or exchange of any Registered Security, or portion
thereof, called for redemption, except the unredeemed portion of any Registered
Security being redeemed in part; or (iii) exchange any Bearer Security called
for redemption, except to exchange such Bearer Security for a Registered
Security of that series and like tenor that is immediately surrendered for
redemption. (Section 305)
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement,
payment of principal of, and any premium and interest on, Bearer Securities
will be payable, subject to any applicable laws and regulations, at the offices
of such Paying Agents outside the United States as the Company may designate
from time to time, in the manner indicated in such Prospectus Supplement.
(Section 1002) Unless otherwise indicated in an applicable Prospectus
Supplement, payment of interest on Bearer Securities on any Interest Payment
Date will be made only against surrender to the Paying Agent of the coupon
relating to such Interest Payment Date. (Section 1001) No payment with respect
to any Bearer Security will be made at any office or agency of the Company in
the United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States.
Notwithstanding the foregoing, payments of principal of, and any premium and
interest on, Bearer Securities denominated and payable in U.S. dollars will be
made at the offices of the Company's Paying Agent in the City of New York, if
(but only if) payment of the full amount thereof in U.S. dollars at all offices
or agencies outside the United States is illegal or effectively precluded by
exchange controls or other similar restrictions. (Section 1002)
Unless otherwise indicated in an applicable Prospectus Supplement,
payment of principal of, and any premium and interest on, Registered Securities
will be made at the office of such Paying Agent or Paying Agents as the Company
may designate from time to time, except that at the option of the Company
payment of any interest may be made by check mailed on or before the due date
to the address of the Person entitled thereto as such address shall appear in
the Security Register. (Sections 307 and 1002) Unless otherwise indicated in an
applicable Prospectus Supplement, payment of any installment of interest on
Registered Securities will be made to the Person in whose name such Registered
Security is registered at the close of business on the Regular Record Date for
such interest. (Section 307)
Unless otherwise indicated in an applicable Prospectus Supplement, the
Trustee at its Corporate Trust Office will be designated as a Paying Agent for
the Company for payments with respect to Securities that are issuable solely as
Registered Securities, and the Company will maintain a Paying Agent outside the
United States for payments with respect to Securities (subject to the
limitations described above in the case of Bearer Securities) that are issuable
solely as Bearer Securities or as both
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<PAGE> 8
Registered Securities and Bearer Securities. Any Paying Agents outside the
United States and any other Paying Agents in the United States initially
designated by the Company for the Securities will be named in an applicable
Prospectus Supplement. The Company may at any time designate additional Paying
Agents or rescind the designation of any Paying Agent or approve a change in
the office through which any Paying Agent acts, except that, if Securities of a
series are issuable solely as Registered Securities, the Company will be
required to maintain a Paying Agent in each Place of Payment for such series
and, if Securities of a series are issuable as Bearer Securities, the Company
will be required to maintain (i) a Paying Agent in the City of New York, for
principal payments with respect to any Registered Securities of the series (and
for payments with respect to Bearer Securities of the series in the
circumstances described above, but not otherwise), and (ii) a Paying Agent in a
Place of Payment located outside the United States where Securities of such
series and any coupons appertaining thereto may be presented and surrendered
for payment. (Section 1002)
All monies paid by the Company to a Paying Agent for the payment of
principal of or any premium or interest on any Security that remain unclaimed
at the end of two years after such principal, premium or interest shall have
become due and payable will (subject to applicable escheat laws) be repaid to
the Company, and the Holder of such Security or any coupon will thereafter look
only to the Company for payment thereof. (Section 1003)
GLOBAL SECURITIES
Securities of a series may be issued in whole or in part in the form
of one or more global Securities that will be deposited with, or on behalf of,
a depository identified in the Prospectus Supplement relating to such series.
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form. Unless and until it is exchanged in whole
or in part for the individual Securities represented thereby, a global Security
may not be transferred except as a whole by the depository for such global
Security to a nominee of such depository or by a nominee of such depository to
such depository or another nominee of such depository or by the depository or
any nominee to a successor depository or any nominee of such successor.
(Section 203)
The specific terms of the depository arrangement with respect to a
series of Securities and certain limitations and restrictions relating to a
series of Bearer Securities in the form of one or more global Securities will
be described in the Prospectus Supplement relating to such series.
CERTAIN DEFINITIONS
"Attributable Indebtedness" means, with respect to any Sale/Leaseback
Transaction as of any particular time, the present value (discounted at the
rate of interest implicit in the terms of the lease) of the obligations of the
lessee under such lease for net rental payments during the remaining term of
the lease (including any period for which such lease has been extended). "Net
rental payments" under any lease for any period means the sum of the rental and
other payments required to be paid in such period by the lessee thereunder, not
including, however, any amounts required to be paid by such lessee (whether or
not designated as rental or additional rental) on account of maintenance and
repairs, insurance, taxes, assessments or similar charges required to be paid
by such lessee thereunder contingent upon the amount of sales or deliveries,
maintenance and repairs, insurance, taxes, assessments or similar charges.
(Section 101)
"Consolidated Net Worth" means the amount of total stockholders'
equity shown in the most recent consolidated statement of financial position of
the Company. (Section 101)
"Current Assets" of any Person includes all assets of such Person that
would in accordance with generally accepted accounting principles be classified
as current assets. (Section 101)
"Current Liabilities" of any Person includes all liabilities of such
Person that would in accordance with generally accepted accounting principles
be classified as current liabilities. (Section 101)
"Non-Recourse Indebtedness" means indebtedness of the Company or any
Subsidiary of the Company in respect of which the recourse of the holder of
such indebtedness, whether direct or indirect
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<PAGE> 9
and whether contingent or otherwise, is effectively limited to specified
assets, and with respect to which neither the Company nor any Subsidiary of the
Company provides any credit support. (Section 101)
"Sale/Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Subsidiary, for a period of
more than three years, of any real or personal property, which property has
been or is to be sold or transferred by the Company or such Subsidiary to such
Person in contemplation of such leasing. (Section 101)
"Subsidiary" of a Person means (i) any corporation more than 50% of
the outstanding securities having ordinary voting power of which is owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries,
or by such Person and one or more of its Subsidiaries, or (ii) any partnership
or similar business organization more than 50% of the ownership interests
having ordinary voting power of which shall at the time be so owned. For the
purposes of this definition, "securities having ordinary voting power" means
securities or other equity interests that ordinarily have voting power for the
election of directors, or persons having management power with respect to the
Person, whether at all times or only so long as no senior class of securities
has such voting power by reason of any contingency. (Section 101)
LIMITATION ON LIENS
The Indenture provides that the Company will not, and will not permit
any Subsidiary of the Company to, issue, assume or guarantee any indebtedness
for money borrowed ("Debt") if such Debt is secured by a mortgage, pledge,
security interest or lien (a "mortgage" or "mortgages") upon any real or
personal property of the Company or any Subsidiary of the Company or upon any
shares of stock or other equity interest or indebtedness of any Subsidiary of
the Company (whether such property, shares of stock or other equity interest or
indebtedness is now owned or hereafter acquired), without in any such case
effectively providing that the Securities shall be secured equally and ratably
with (or prior to) such Debt; provided, however, that the foregoing
restrictions shall not apply to: (a) mortgages existing on the date the
Securities are originally issued or mortgages provided for under the terms of
agreements existing on such date; (b) mortgages on Current Assets securing
Current Liabilities; (c) mortgages on any property acquired, constructed,
altered or improved by the Company or any Subsidiary of the Company after the
date of the Indenture that are created or assumed contemporaneously with or
within one year after such acquisition (or in the case of property constructed,
altered or improved, after the completion and commencement of commercial
operation of such property, whichever is later) to secure or provide for the
payment of the purchase price or cost thereof, provided that in the case of any
such construction, alteration or improvement the mortgages shall not apply to
any property theretofore owned by the Company or any Subsidiary of the Company
other than (i) the property so altered or improved and (ii) any theretofore
unimproved real property on which the property so constructed or altered, or
the improvement, is located; (d) existing mortgages on property acquired
(including mortgages on any property acquired from a Person that is
consolidated with or merged with or into the Company or a Subsidiary of the
Company) or mortgages outstanding at the time any Person becomes a Subsidiary
of the Company that are not incurred in connection with such entity becoming a
Subsidiary of the Company; (e) mortgages in favor of the Company or any
Subsidiary of the Company; (f) mortgages on any property (i) in favor of
domestic or foreign governmental bodies to secure partial, progress, advance or
other payments pursuant to any contract or statute, (ii) securing indebtedness
incurred to finance all or any part of the purchase price or cost of
constructing, installing or improving the property subject to such mortgages,
including mortgages to secure Debt of the pollution control or industrial
revenue bond type, or (iii) securing indebtedness issued or guaranteed by the
United States, any State, any foreign country or any department, agency,
instrumentality or political subdivision of any such jurisdiction; and (g) any
extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any mortgage referred to in the
foregoing clauses (a), (b), (c), (d), (e) or (f); provided, however, that the
principal amount of Debt secured thereby shall not exceed the principal amount
of Debt so secured at the time of such extension, renewal or replacement,
together with the reasonable costs related to such extension, renewal or
replacement, and that such extension, renewal or replacement shall be limited
to all or a part of the property that secured the mortgage so extended, renewed
or replaced (plus improvements on such property). (Section 1006)
Notwithstanding the foregoing, the Company and any Subsidiary of the
Company may, without securing the Securities, issue, assume or guarantee
secured Debt (that would otherwise be subject to the foregoing restrictions) in
an aggregate amount that, together with all other such secured Debt and the
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<PAGE> 10
aggregate amount of Attributable Indebtedness of the Company and its
Subsidiaries deemed to be outstanding in respect of all Sale/Leaseback
Transactions entered into pursuant to the provisions described below under
"--Limitation on Sale/Leaseback Transactions" (excluding any such
Sale/Leaseback Transactions the proceeds of which have been applied in
accordance with clauses (2) or (3) under the "--Limitation on Sale/Leaseback
Transactions" covenant described below), does not exceed 10% of the
Consolidated Net Worth, as shown on a consolidated balance sheet as of a date
not more than 90 days prior to the proposed transaction prepared by the Company
in accordance with generally accepted accounting principles. (Section 1006)
LIMITATION ON SALE/LEASEBACK TRANSACTIONS
The Indenture provides that the Company will not, and will not permit
any of its Subsidiaries to, enter into any Sale/Leaseback Transaction with any
Person (other than the Company or a Subsidiary of the Company) unless:
(1) at the time of entering into such Sale/Leaseback Transaction,
the Company or such Subsidiary would be entitled to incur Debt, in a principal
amount equal to the Attributable Indebtedness with respect to such
Sale/Leaseback Transaction, secured by a mortgage on the property subject to
such Sale/Leaseback Transaction, pursuant to the provisions of the covenant
described under "--Limitation on Liens" without equally and ratably securing
the Securities pursuant to such provisions;
(2) after the date on which Securities are first issued and within
a period commencing six months prior to the consummation of such Sale/Leaseback
Transaction and ending six months after the consummation thereof, the Company
or such Subsidiary shall have expended for property used or to be used in the
ordinary course of business of the Company or such Subsidiary (including
amounts expended for additions, expansions, alterations, repairs and
improvements thereto) an amount equal to all or a portion of the net proceeds
of such Sale/Leaseback Transaction, and the Company shall have elected to
designate such amount as a credit against such Sale/Leaseback Transaction (with
any such amount not being so designated to be applied as set forth in clause
(3) below); or
(3) during the 12-month period after the effective date of such
Sale/Leaseback Transaction, the Company shall have applied to the voluntary
defeasance or retirement of Securities or any pari passu indebtedness of the
Company an amount equal to the net proceeds of the sale or transfer of the
property leased in such Sale/Leaseback Transaction, which amount shall not be
less than the fair value of such property at the time of entering into such
Sale/Leaseback Transaction (adjusted to reflect the remaining term of the lease
and any amount expended by the Company as set forth in clause (2) above), less
an amount equal to the principal amount of such Securities and pari passu
indebtedness voluntarily defeased or retired by the Company within such
12-month period and not designated as a credit against any other Sale/Leaseback
Transaction entered into by the Company or any Subsidiary of the Company during
such period. (Section 1009)
EVENTS OF DEFAULT
Unless otherwise indicated in an applicable Prospectus Supplement, any
of the following events will constitute an Event of Default under the Indenture
with respect to Securities of any series: (a) failure to pay any interest on
any Security of that series when due, continued for 30 days; (b) failure to pay
principal of or any premium on any Security of that series when due; (c)
failure to deposit any sinking fund payment, when due, in respect of any
Security of that series; (d) failure to perform or breach of any other covenant
of the Company in the Indenture (other than a covenant included in the
Indenture solely for the benefit of series of Securities other than that
series), continued for 90 days after written notice as provided in the
Indenture; (e) the acceleration of the maturity of any indebtedness for
borrowed money of the Company or any Subsidiary of the Company (other than the
Securities or Non-Recourse Indebtedness) having an aggregate principal amount
outstanding in excess of $25,000,000, if such acceleration is not rescinded or
annulled, or such indebtedness shall not have been discharged, within 15 days
after written notice thereof to the Company; (f) certain events in bankruptcy,
insolvency or reorganization involving the Company; and (g) any other Event of
Default provided with respect to Securities of that series. (Section 501)
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<PAGE> 11
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities of
that series, by notice as provided in the Indenture, may declare the principal
amount (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all the Securities of that series to be due and
payable immediately. At any time after a declaration of acceleration with
respect to Securities of any series has been made, but before a judgment or
decree for payment of money has been obtained by the Trustee, the Holders of a
majority in aggregate principal amount of the Outstanding Securities of that
series, under certain circumstances, may rescind and annul such acceleration.
(Section 502)
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. (Sections 601, 603) Subject to
such provisions for the indemnification of the Trustee, the Holders of a
majority in aggregate principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities of that
series; provided, however, that the Trustee shall not be obligated to take any
action unduly prejudicial to Holders not joining in such direction or involving
the Trustee in personal liability. (Section 512)
The Company will be required to furnish to the Trustee annually a
statement as to the Company's compliance with conditions and covenants under
the Indenture. (Section 1007)
DEFEASANCE
If so specified with respect to any particular series of Securities,
the Company may discharge its indebtedness and its obligations or certain of
its obligations under the Indenture with respect to such series by depositing
funds or obligations issued or guaranteed by the United States of America with
the Trustee.
Defeasance and Discharge
The Indenture provides that, if so specified with respect to the
Securities of any series, the Company will be discharged from any and all
obligations in respect of the Securities of such series (except for certain
obligations, including those relating to temporary Securities and exchange of
Securities, registration of transfer or exchange of Securities of such series,
replacement of stolen, destroyed, lost or mutilated Securities of such series,
maintenance of paying agencies to hold moneys for payment in trust and payments
of additional amounts, if any, required in consequence of United States
withholding taxes imposed on payments to non-United States persons) upon the
deposit with the Trustee, in trust, of an amount of money, and/or U.S.
Government Obligations that, through the scheduled payment of interest and
principal in respect thereof in accordance with their terms, will provide money
in an amount, sufficient to pay and discharge the principal of, and any premium
and each installment of interest on, the Securities of such series on the
Stated Maturity of such payments in accordance with the terms of the Indenture
and the Securities of such series. (Sections 1302 and 1304) Such a trust may
only be established if, among other things, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling, or
(ii) since the date of the Indenture there has been a change in applicable
federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of Securities of such
series will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit, defeasance and discharge, and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit, defeasance and discharge had
not occurred. (Section 1304) In the event of any such defeasance and
discharge of Securities of such series, Holders of Securities of such series
would be entitled to look only to such trust fund for payment of principal of
and any premium and any interest on their Securities until Maturity.
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<PAGE> 12
Defeasance of Certain Obligations
The Indenture provides that, if so specified with respect to the
Securities of any series, the Company may omit to comply with certain
restrictive covenants, including the covenants described under "--Limitation on
Liens" and "--Limitation on Sale/Leaseback Transactions" above, and any such
omission shall not be an Event of Default with respect to the Securities of
such series, upon the deposit with the Trustee, in trust, of an amount of
money, and/or U.S. Government Obligations that, through the scheduled payment
of interest and principal in respect thereof in accordance with their terms,
will provide money in an amount, sufficient to pay and discharge the principal
of, and any premium and each installment of interest on, the Securities of such
series on the Stated Maturity of such payments in accordance with the terms of
the Indenture and the Securities of such series. The obligations of the
Company under the Indenture and the Securities of such series other than with
respect to such covenants shall remain in full force and effect. (Sections
1303 and 1304) Such a trust may be established only if, among other things,
the Company has delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Securities of such series will not recognize gain or
loss for federal income tax purposes as a result of such deposit and defeasance
of certain obligations and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such deposit and defeasance had not occurred. (Section 1304)
Although the amount of money and U.S. Government Obligations on
deposit with the Trustee would be intended to be sufficient to pay amounts due
on the Securities of such series at the time of their Stated Maturity, in the
event the Company exercises its option to omit compliance with the covenants
defeased with respect to the Securities of any series as described above and
the Securities of such series are declared due and payable because of the
occurrence of any Event of Default, such amount may not be sufficient to pay
amounts due on the Securities of such series at the time of the acceleration
resulting from such Event of Default. The Company shall in any event remain
liable for such payments as provided in the Indenture.
Federal Income Tax Consequences
Under current United States federal income tax law, defeasance and
discharge likely would be treated as a taxable exchange of Securities to be
defeased for an interest in the defeasance trust. As a consequence, a holder
would recognize gain or loss equal to the difference between the holder's cost
or other tax basis for such Securities and the value of the holder's interest
in the defeasance trust, and thereafter would be required to include in income
a share of the income, gain or loss of the defeasance trust. Under current
United States federal income tax law, covenant defeasance would ordinarily not
be treated as a taxable exchange of such Securities.
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of each series
affected by such modification or amendment; provided, however, that no such
modification or amendment may, without consent of the Holder of each
Outstanding Security affected thereby, (a) change the Stated Maturity of the
principal of, or any installment of principal of or interest on, any Security;
(b) change the Redemption Date with respect to any Security; (c) reduce the
principal amount of, or premium or interest rate on, any Security; (d) change
any obligation of the Company to pay additional amounts; (e) reduce the amount
of principal of an Original Issue Discount Security payable upon acceleration
of the Maturity thereof; (f) change the coin or currency in which any Security
or any premium or interest thereon is payable; (g) change the redemption right
of any Holder; (h) impair the right to institute suit for the enforcement of
any payment on or with respect to any Security; (i) reduce the percentage in
principal amount of Outstanding Securities of any series, the consent of whose
Holders is required for modification or amendment of the Indenture or for
waiver of compliance with certain provisions of the Indenture or for waiver of
certain defaults; (j) reduce the requirements contained in the Indenture for
quorum or voting; (k) change any obligation of the Company to maintain an
office or agency in the places and for the purposes required by the Indenture;
or (l) modify any of the above provisions. (Section 902)
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<PAGE> 13
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of each series may, on behalf of the Holders of all
Securities of that series, waive, insofar as that series is concerned,
compliance by the Company with certain restrictive provisions of the Indenture.
(Section 1008) The Holders of a majority in aggregate principal amount of the
Outstanding Securities of each series may, on behalf of all Holders of
Securities of that series, waive any past default under the Indenture with
respect to any Securities of that series, except a default (a) in the payment
of principal of, or any premium or interest on, any Security of such series or
(b) in respect of a covenant or provision of the Indenture that cannot be
modified or amended without the consent of the Holder of each Outstanding
Security of such series affected. (Section 513)
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
or are present at a meeting of the Holders of Securities for quorum purposes,
(i) the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the principal that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof, and (ii) the principal amount of a Security denominated in a
foreign currency or currencies shall be the U.S. dollar equivalent, determined
on the date of original issuance of such Security, of the principal amount of
such Security or, in the case of an Original Issue Discount Security, the U.S.
dollar equivalent, determined on the date of original issuance of such
Security, of the amount determined as provided in clause (i) above. (Section
101)
The Indenture contains provisions for convening meetings of the
Holders of Securities of a series if Securities of that series are issuable as
Bearer Securities. (Section 1401) A meeting may be called at any time by the
Trustee, and also, upon request by the Company or the Holders of at least 10%
in aggregate principal amount of the Outstanding Bearer Securities of that
series, in any such case upon notice given in accordance with the provisions
described under "--Notices" below. (Section 1402) Except for any consent that
must be given by the Holder of each Outstanding Bearer Security affected
thereby, as described above, any resolution presented at a meeting (or
adjourned meeting duly reconvened at which a quorum is present) may be adopted
by the affirmative vote of the Holders of a majority in principal amount of the
Outstanding Bearer Securities of that series; provided, however, that, except
for any consent or waiver that must be given by the Holder of each Outstanding
Bearer Security affected thereby, as described above, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that may be made, given or taken by the Holders of a
specified percentage, which is less than a majority in aggregate principal
amount of the Outstanding Bearer Securities of a series, may be adopted at a
meeting (or adjourned meeting duly reconvened at which a quorum is present) by
the affirmative vote of such specified percentage in aggregate principal amount
of the Outstanding Bearer Securities of that series. Any resolution passed or
decision taken at any meeting of Holders of Bearer Securities of any series
duly held in accordance with the Indenture will be binding on all Holders of
Bearer Securities of that series and related coupons. The quorum at any
meeting, and at any reconvened meeting, will be Persons holding or representing
a majority in aggregate principal amount of the Outstanding Bearer Securities
of a series. (Section 1404)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of the Holders of any of the
Outstanding Securities under the Indenture, may consolidate with or merge into,
or convey, transfer or lease its properties and assets substantially as an
entirety to, any other Person that is a corporation, partnership or trust
organized and validly existing under the laws of any domestic jurisdiction,
provided that any successor Person assumes the Company's obligations on the
Securities and under the Indenture, that after giving effect to the transaction
no Event of Default (and no event that, after notice or lapse of time or both,
would become an Event of Default) shall have occurred and be continuing, and
that certain other conditions are met. (Section 801)
NOTICES
Except as otherwise provided in the Indenture, notices to Holders of
Bearer Securities will be given by publication at least twice in a daily
newspaper in The City of New York and in such other city or cities as may be
specified in such Securities. Notices to Holders of Registered Securities will
be given by mail to the addresses of such Holders as they appear in the
Security Register. (Section 106)
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<PAGE> 14
TITLE
Title to any Bearer Securities (including Bearer Securities in
permanent global form) and any coupons appertaining thereto will pass by
delivery. The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon and
the registered owner of any Registered Security as the owner thereof (whether
or not such Security or coupon shall be overdue and notwithstanding any notice
to the contrary) for the purpose of making payments and for all other purposes.
(Section 308)
REPLACEMENT OF SECURITIES
Any mutilated Security or a Security with a mutilated coupon
appertaining thereto will be replaced by the Company at the expense of the
Holder upon surrender of such Security to the Trustee. Securities or coupons
that become destroyed, stolen or lost will be replaced by the Company at the
expense of the Holder upon delivery to the Company and the Trustee of the
Security and coupons or evidence of destruction, loss or theft thereof
satisfactory to the Company and the Trustee; in the case of any coupon that
becomes destroyed, stolen or lost, such coupon will be replaced by issuance of
a new Security in exchange for the Security to which such coupon appertains.
In the case of a destroyed, lost or stolen Security or coupon, an indemnity
satisfactory to the Trustee and the Company may be required at the expense of
the Holder of such Security or coupon before a replacement Security will be
issued. (Section 306)
GOVERNING LAW
The Indenture, the Securities and any coupons will be governed by, and
construed in accordance with, the laws of the State of New York. (Section 113)
REGARDING THE TRUSTEE
The Company and certain affiliates from time to time borrow money
from, and maintain deposit accounts and conduct certain banking transactions
with, Bank of Montreal, an affiliate of the Trustee, in the ordinary course of
their business. Bank of Montreal is a lender under the Company's bank credit
facility.
The Indenture and the provisions of the Trust Indenture Act
incorporated by reference therein contain certain limitations on the right of
the Trustee, should it become a creditor of the Company, to obtain payment of
claims in certain cases, or to realize for its own account on certain property
received in respect of any such claim as security or otherwise. (Section 613)
The Trustee will be permitted to engage in certain other transactions; however,
if it acquires any conflicting interest, it must eliminate such conflict or
resign. (Section 608)
PLAN OF DISTRIBUTION
GENERAL
The Company may sell Securities to or through underwriters or dealers,
and also may sell Securities directly to one or more other purchasers or
through agents. The Prospectus Supplement accompanying this Prospectus sets
forth the names of any underwriters or agents involved in the sale of the
Securities and any applicable commissions or discounts.
Underwriters, dealers or agents may offer and sell the Securities at a
fixed price or prices, which may be changed, or from time to time at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. In connection with the sale of the
Securities, underwriters or agents may be deemed to have received compensation
from the Company in the form of underwriting discounts or commissions and also
may receive commissions from purchasers of the Securities for whom they may act
as agent. Underwriters or agents may sell the Securities to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters or commissions from the
purchasers for whom they may act as agent.
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<PAGE> 15
The Securities, when first issued, will have no established trading
market. Any underwriters or agents to or through whom Securities are sold by
the Company for public offering and sale may make a market in such Securities,
but such underwriters or agents will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any Securities.
Any underwriters, dealers or agents participating in the distribution
of the Securities may be deemed to be underwriters, and any discounts and
commissions received by them and any profit realized by them on resale of the
Securities may be deemed to be underwriting discounts and commissions under the
Securities Act. Underwriters, dealers or agents may be entitled, under
agreements entered into with the Company, to indemnification by the Company
against or contribution toward certain civil liabilities, including liabilities
under the Securities Act.
DELAYED DELIVERY ARRANGEMENTS
If so indicated in the Prospectus Supplement, the Company will
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
contracts will be subject to the approval of the Company. The obligations of
any purchaser under any such contract will be subject to the condition that the
purchase of the Securities shall not at the time of delivery be prohibited
under the laws of the jurisdiction to which such purchaser is subject. The
underwriters and such agents will not have any responsibility in respect of the
validity or performance of such contracts.
LEGAL MATTERS
The legality of the Securities are being passed upon by Fulbright &
Jaworski L.L.P., 1301 McKinney, Suite 5100, Houston, Texas 77010. Certain
legal matters in connection with the Securities may be passed upon for any
underwriters, dealers or agents by Vinson & Elkins L.L.P., 1001 Fannin, Suite
2300, Houston, Texas 77002. From time to time, Vinson & Elkins L.L.P. serves
the Company as outside special counsel in certain unrelated matters.
EXPERTS
The consolidated financial statements of the Company at December 31,
1995 and 1994, and for each of the three years in the period ended December 31,
1995, incorporated by reference in this Prospectus and the accompanying
Prospectus Supplement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their report with respect thereto, and are
incorporated by reference in this Prospectus in reliance upon the authority of
said firm as experts in accounting and auditing in giving said report.
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<PAGE> 16
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses (all of which are
estimated except for the Securities and Exchange Commission registration fee)
payable by the Registrant in connection with the distribution of the securities
being registered.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee . . . $ 103,449
Printing and engraving expenses . . . . . . . . . . . . . $ 40,000
Legal fees and expenses . . . . . . . . . . . . . . . . . $ 100,000
Accounting fees and expenses . . . . . . . . . . . . . . $ 50,000
Blue sky fees and expenses . . . . . . . . . . . . . . . $ 10,000
Rating agency fees . . . . . . . . . . . . . . . . . . . $ 205,000
Miscellaneous expenses . . . . . . . . . . . . . . . . . $ 25,000
-------------
Total . . . . . . . . . . . . . . . . . . . . . $ 533,449
=============
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Weatherford's Restated Certificate of Incorporation contains a
provision that eliminates the personal monetary liability of a director to
Weatherford and its stockholders for breach of his fiduciary duty of care as a
director to the extent currently allowed under the Delaware General Corporation
Law (the "DGCL"). If a director were to breach the duty of care in performing
his duties as a director, neither Weatherford nor its stockholders could
recover monetary damages from the director, and the only course of action
available to Weatherford's stockholders would be equitable remedies, such as an
action to enjoin or rescind a transaction involving a breach of the fiduciary
duty of care. To the extent certain claims against directors are limited to
equitable remedies, this provision of Weatherford's Restated Certificate of
Incorporation may reduce the likelihood of derivative litigation and may
discourage stockholders or management from initiating litigation against
directors for breach of their duty of care. Additionally, equitable remedies
may not be effective in many situations. If a stockholder's only remedy is to
enjoin the completion of the Board of Directors' action, this remedy would be
ineffective if the stockholder does not become aware of a transaction or event
until after it has been completed. In such a situation, it is possible that
the stockholders and Weatherford would have no effective remedy against the
directors. The directors do not have liability for monetary damages for
grossly negligent business decisions (in violation of their duty of care),
including decisions made in connection with attempts to acquire Weatherford.
Liability for monetary damages remains for (i) any breach of the duty of
loyalty to Weatherford or its stockholders, (ii) acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) payment of an improper dividend or improper repurchase of Weatherford's
stock under Section 174 of the DGCL or (iv) any transaction from which the
director derived an improper personal benefit. Weatherford's Restated
Certificate of Incorporation further provides that in the event the DGCL is
amended to allow the further elimination or limitation of the liability of
directors, then the liability of Weatherford's directors shall be limited to
the fullest extent permitted by the amended DGCL.
The DGCL permits a corporation to indemnify certain persons, including
officers and directors, who are (or are threatened to be made) parties to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of their being officers or directors of the
corporation. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by an indemnified officer or director, provided he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, in the case of criminal proceedings, provided
he had no reasonable cause to believe that his conduct was unlawful. The
Bylaws of Weatherford provide indemnification to the fullest extent allowed
pursuant to the foregoing provisions of the DGCL.
The DGCL further permits a corporation to indemnify certain persons,
including officers and directors, who are (or are threatened to be made)
parties to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of their
being
II-1
<PAGE> 17
officers or directors of the corporation. The indemnity may include expenses
(including attorneys' fees) actually and reasonably incurred by the indemnified
officer or director, provided he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best
interests. However, no such person will be indemnified as to matters for which
he is found to be liable for negligence or misconduct in the performance of his
duty to the corporation unless, and only to the extent that, indemnification is
ordered by a court. The Bylaws of Weatherford provide indemnification to the
fullest extent allowed pursuant to the foregoing provisions of the DGCL.
Weatherford also has entered into an indemnification agreement with
each of its directors and certain of its officers. Each such indemnification
agreement provides for indemnification to the fullest extent permitted by the
DGCL and for the advancement of expenses, including attorneys' fees and other
costs, expenses and obligations, paid or incurred in connection with
investigating, defending, being a witness in or participating in (including on
appeal) any threatened, pending or completed action, suit or proceeding related
to the fact that such director or officer was serving for or at the request of
Weatherford. To the extent that the Board of Directors or the stockholders of
Weatherford may in the future wish to limit or repeal the ability of
Weatherford to indemnify or advance expenses to officers and directors, such
repeal or limitation may not be effective as to officers and directors who are
parties to an indemnification agreement, since their rights to full protection
are contractually assured by the indemnification agreement.
Delaware corporations also are authorized to obtain insurance to
protect officers and directors from certain liabilities, including liabilities
against which the corporation cannot indemnify its directors and officers.
Weatherford currently has in effect a directors' and officers' liability
insurance policy providing aggregate coverage in the amount of $10,000,000.
All of the foregoing indemnification provisions include statements
that such provisions are not to be deemed exclusive of any other right to
indemnity to which a director or officer may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
ITEM 16. EXHIBITS.
The following exhibits are filed herewith unless otherwise indicated:
*1 Form of Underwriting Agreement.
*4.1 Form of Indenture, between Weatherford Enterra, Inc.
and Bank of Montreal Trust Company, as Trustee.
4.2 Corrected Restated Certificate of Incorporation of
Weatherford Enterra, Inc., as amended through January
26, 1996 (incorporated by reference to Exhibit 3.1 to
Weatherford's Annual Report on Form 10-K for the year
ended December 31, 1995 (File No. 1-7867)).
4.3 Bylaws of Weatherford Enterra, Inc., as amended
through March 17, 1994 (incorporated by reference to
Exhibit 3.1 to Weatherford's Current Report on Form
8-K dated April 28, 1994 (File No. 1-7867)).
*5 Opinion of Fulbright & Jaworski L.L.P., regarding
legality of securities.
**12 Statement re computation of ratios of earnings to
fixed charges.
**23.1 Consent of Arthur Andersen LLP.
*23.2 Consent of Fulbright & Jaworski L.L.P. (contained in
Exhibit 5).
*24 Powers of Attorney
*25 Statement of Eligibility and Qualification of the
Trustee on Form T-1.
- -------------
* Previously filed.
** Filed herewith.
II-2
<PAGE> 18
ITEM 17. UNDERTAKINGS.
(a) 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 the Registration Statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(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 the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post- effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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 the time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, 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.
II-3
<PAGE> 19
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For purposes of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-4
<PAGE> 20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of
Texas on the 9th day of May, 1996.
WEATHERFORD ENTERRA, INC.
By /s/ H. SUZANNE THOMAS
-------------------------------------
H. Suzanne Thomas
Senior Vice President,
General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chairman of the Board, May 9, 1996
- -------------------------- President and Chief Executive
Philip Burguieres Officer (Principal Executive
Officer)
* Senior Vice President, May 9, 1996
- -------------------------- Chief Financial Officer and
Norman W. Nolen Treasurer (Principal Financial
and Accounting Officer)
* Director May 9, 1996
- --------------------------
Thomas N. Amonett
* Director May 9, 1996
- --------------------------
William E. Greehey
</TABLE>
II-5
<PAGE> 21
<TABLE>
<S> <C> <C>
* Director May 9, 1996
- --------------------------
John A. Hill
* Director May 9, 1996
- --------------------------
John W. Johnson
* Director May 9, 1996
- --------------------------
William E. Macaulay
* Director May 9, 1996
- --------------------------
Robert K. Moses, Jr.
* Director May 9, 1996
- --------------------------
R. Rudolph Reinfrank
* Director May 9, 1996
- --------------------------
Roger M. Widmann
*By: /s/ H. SUZANNE THOMAS May 9, 1996
-------------------------
H. Suzanne Thomas
as Attorney-in-Fact
</TABLE>
II-6
<PAGE> 22
INDEX TO EXHIBITS
*1 Form of Underwriting Agreement.
*4.1 Form of Indenture, between Weatherford Enterra, Inc.
and Bank of Montreal Trust Company, as Trustee.
4.2 Corrected Restated Certificate of Incorporation of
Weatherford Enterra, Inc., as amended through January
26, 1996 (incorporated by reference to Exhibit 3.1 to
Weatherford's Annual Report on Form 10-K for the year
ended December 31, 1995 (File No. 1-7867)).
4.3 Bylaws of Weatherford Enterra, Inc., as amended
through March 17, 1994 (incorporated by reference to
Exhibit 3.1 to Weatherford's Current Report on Form
8-K dated April 28, 1994 (File No. 1-7867)).
*5 Opinion of Fulbright & Jaworski L.L.P., regarding
legality of securities.
**12 Statement re computation of ratios of earnings to
fixed charges.
**23.1 Consent of Arthur Andersen LLP.
*23.2 Consent of Fulbright & Jaworski L.L.P. (contained in
Exhibit 5).
*24 Powers of Attorney.
*25 Statement of Eligibility and Qualification of the
Trustee on Form T-1.
------------
* Previously filed.
** Filed herewith.
<PAGE> 1
EXHIBIT 12
WEATHERFORD ENTERRA, INC. AND SUBSIDIARIES
RATIO OF EARNINGS TO FIXED CHARGES
(In thousands except ratios)
<TABLE>
<CAPTION>
Three Months
Ended Year Ended December 31,
March 31, -------------------------------------------------------------
1996 1995 1994 1993 1992 1991
--------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
FIXED CHARGES:
Interest on debt $5,072 $17,217 $8,847 $4,027 $3,026 $4,371
Interest element of rentals 1,106 4,690 5,110 4,563 3,391 3,525
------- --------- --------- --------- --------- ---------
TOTAL FIXED CHARGES $6,178 $21,907 $13,957 $8,590 $6,417 $7,896
======= ========= ========= ========= ========= =========
EARNINGS AVAILABLE TO COVER FIXED CHARGES:
Net income (loss) $13,477 $(10,558) $41,977 $35,175 $26,760 $14,234
Add back:
Provision (benefit) for income taxes 5,825 (4,616) 16,958 13,635 10,292 18,523
Distributions in excess of (undistributed)
earnings of affiliates (72) 189 868 905 (99) (1,021)
Fixed charges 6,178 21,907 13,957 8,590 6,417 7,896
-------- --------- --------- --------- --------- ---------
TOTAL EARNINGS AVAILABLE TO COVER FIXED CHARGES $25,408 $6,922 $73,760 $58,305 $43,370 $39,632
======== ========= ========= ========= ========= =========
RATIO OF EARNINGS TO FIXED CHARGES 4.11 5.28 6.79 6.76 5.02
======== ========= ========= ========= =========
AMOUNT BY WHICH EARNINGS WERE INADEQUATE TO COVER
FIXED CHARGES $14,985(1)
=========
</TABLE>
(1) Excluding the effect of acquisition-related costs and other unusual
charges totaling $88,182,000, the 1995 ratio of earnings to fixed
charges for the Company was 4.34.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Amendment No. 1 to Registration Statement on Form S-3 of our
report dated February 29, 1996, included in Weatherford Enterra, Inc.'s Form
10-K for the year ended December 31, 1995 and our report dated February 23,
1996 included in Weatherford Enterra, Inc.'s Form 8-K/A dated February 27, 1996
and to all references to our firm included in this Amendment No. 1 to
Registration Statement.
ARTHUR ANDERSEN LLP
Houston, Texas
May 9, 1996
