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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 11, 1994
REGISTRATION NO. 33-54149
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
DEERE & COMPANY
(Exact name of Registrant as specified in its charter)
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<TABLE>
<S> <C>
DELAWARE 36-2382580
(State or other (I.R.S. employer
jurisdiction of identification number)
incorporation or
organization)
</TABLE>
JOHN DEERE ROAD
MOLINE, ILLINOIS 61265-8098
309/765-8000
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
FRANK S. COTTRELL
DEERE & COMPANY
JOHN DEERE ROAD
MOLINE, ILLINOIS 61265-8098
309/765-4675
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
<TABLE>
<S> <C>
JONATHAN JEWETT HOWARD G. GODWIN, JR.
SHEARMAN & STERLING BROWN & WOOD
599 LEXINGTON AVENUE ONE WORLD TRADE CENTER
NEW YORK, NEW YORK 10022 NEW YORK, NEW YORK 10048
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME
TO TIME AFTER THE REGISTRATION STATEMENT BECOMES EFFECTIVE.
------------------------
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 being offered only in connection with dividend or
interest reinvestment plans, check the following box. /X/
------------------------
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said section 8(a),
may determine.
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<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED AUGUST 11, 1994
PROSPECTUS
DEERE & COMPANY
DEBT SECURITIES
WARRANTS TO PURCHASE DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
COMMON STOCK
WARRANTS TO PURCHASE COMMON STOCK
CURRENCY WARRANTS
INDEXED, COMMODITY AND OTHER WARRANTS
Deere & Company (the "Company") may offer and sell from time to time under
this prospectus, together or separately, (i) its unsecured debt securities (the
"Debt Securities"), which may be either senior (the "Senior Securities") or
subordinated (the "Subordinated Securities"), (ii) warrants to purchase Debt
Securities (the "Debt Warrants"), (iii) shares of its preferred stock (the
"Preferred Stock"), (iv) depositary shares (the "Depositary Shares")
representing interests in Preferred Stock, (v) shares of its common stock (the
"Common Stock"), (vi) warrants to purchase Common Stock (the "Common Warrants"),
(vii) options, warrants or other rights relating to foreign currency exchange
rates (the "Currency Warrants") and (viii) warrants for the purchase or sale of
debt securities of, or guaranteed by, the United States, units of a stock index
or stock basket or a commodity or a unit of a commodity index (the "Shelf
Warrants"), all on terms to be determined at the time of offering. The Debt
Securities and Preferred Stock may be convertible into or exchangeable for
Common Stock or other securities as herein described.
The Debt Warrants, Common Warrants, Currency Warrants and Shelf Warrants are
collectively called the "Warrants". The Debt Securities, Warrants, Preferred
Stock, Depositary Shares and Common Stock, or a combination thereof, proposed to
be sold pursuant to this prospectus and the accompanying prospectus supplement
are referred to as the "Offered Securities", and the Offered Securities,
together with any Debt Securities, Preferred Stock and Common Stock issuable
upon exercise of Warrants or conversion or exchange of other Securities, are
referred to as the "Securities". Securities (including Securities issuable upon
exercise of Warrants or upon conversion or exchange of other Securities) with an
aggregate initial offering price of up to $700,000,000 (or the equivalent
thereof if any of the Securities are denominated in a currency, currency unit or
composite currency ("Currency") other than the U.S. dollar) may be issued under
this prospectus.
The prospectus supplement accompanying this prospectus sets forth, with
respect to each series or issue of Securities for which this prospectus and the
prospectus supplement are being delivered; (i) the terms of any Debt Securities
offered, including, where applicable, their title, ranking, aggregate principal
amount, maturity, rate of any interest (or manner of calculation) and time of
payment thereof, any redemption or repayment terms, the Currency or Currencies
in which such Debt Securities will be denominated or payable, any index, formula
or other method pursuant to which principal, premium, if any, or interest, if
any, may be determined, any terms for the conversion or exchange thereof and the
form of such Debt Securities (which may be in registered, bearer or global
form); (ii) the terms of any Warrants offered, including, where applicable, the
exercise price, detachability, expiration date and other terms; (iii) the terms
of any Preferred Stock offered, including the specific designations and
dividend, redemption, liquidation, voting and other rights not described in this
prospectus and any terms for the conversion or exchange thereof; (iv) the terms
of any Depositary Shares offered; and (v) any initial offering price, the
purchase price and net proceeds to the Company and the other specific terms
related to the offering of such Securities.
The Company may sell Offered Securities to or through underwriters, dealers
or agents, and also may sell Offered Securities directly to other purchasers.
See "Plan of Distribution". No Offered Securities may be sold without delivery
of a prospectus supplement describing such Offered Securities and the method and
terms of offering thereof.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is August , 1994.
<PAGE>
AVAILABLE INFORMATION
Deere & Company is subject to the informational requirements of the
Securities Exchange Act of 1934 and in accordance therewith files reports and
other information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements, and other information may be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549; 500 W. Madison
Street, Chicago, Illinois 60606; and Seven World Trade Center, New York, New
York 10048; and copies of such material may be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates. Reports, proxy statements and other information
concerning the Company may also be inspected at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated in this prospectus by reference:
1. Annual report on Form 10-K for the fiscal year ended October 31, 1993;
2. Quarterly reports on Form 10-Q for the quarters ended January 31, 1994
and April 30, 1994; and
3. Current reports on Form 8-K dated December 7, 1993, January 13, 1994,
February 22, 1994, May 24, 1994 and July 21, 1994.
All documents subsequently filed by the Company pursuant to sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 prior to the
termination of any offering of the Securities made by this prospectus shall be
deemed to be incorporated by reference in this prospectus and to be a part of
this prospectus from the date of the filing of such documents. Any statement
contained herein or 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 the
accompanying prospectus supplement) or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
replaces 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 will provide without charge to each person to whom this
prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents referred to above that have been or may be
incorporated by reference in this prospectus, other than exhibits to such
documents. Such written or oral request should be directed to Deere & Company,
John Deere Road, Moline, Illinois 61265-8098, Attention: Corporate Secretary
(309/765-8000).
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<PAGE>
THE COMPANY
The Company and its subsidiaries (collectively called "John Deere")
manufacture, distribute and finance a full range of agricultural equipment; a
broad range of industrial equipment for construction, forestry and public works;
and a variety of lawn and grounds care equipment. The Company also provides
credit, health care and insurance products for businesses and the general
public. The Company believes that its worldwide sales of agricultural equipment
during recent years have been greater than those of any other business
enterprise. It also believes that John Deere is an important provider of most of
the types of industrial equipment that it markets, and a leader in some size
ranges. The Company also believes it is the largest manufacturer of lawn and
garden tractors and provides the broadest line of grounds care equipment in
North America. John Deere's operations are categorized into five business
segments:
The Company's worldwide AGRICULTURAL EQUIPMENT segment manufactures and
distributes a full range of equipment used in commercial farming--including
tractors; tillage, soil preparation, planting and harvesting machinery; and
crop handling equipment.
The Company's worldwide INDUSTRIAL EQUIPMENT segment manufactures and
distributes a broad range of machines used in construction, earthmoving and
forestry--including backhoe loaders; crawler dozers and loaders;
four-wheel-drive loaders; scrapers; motor graders; excavators; and log
skidders. This segment also includes the manufacture and distribution of
engines and drivetrain components for the original equipment manufacturers
(OEM) market.
The Company's worldwide LAWN AND GROUNDS CARE EQUIPMENT segment
manufactures and distributes equipment for commercial and residential
uses--including small tractors for lawn, garden and utility purposes; riding
and walk-behind mowers; golf course equipment; utility transport vehicles;
snowblowers; and other outdoor power products.
The products produced by the equipment segments are marketed primarily
through independent retail dealer networks.
The Company's CREDIT segment, which operates in the United States and
Canada, purchases and finances retail notes from John Deere's equipment
sales branches in the United States and Canada. The notes are acquired by
the sales branches through John Deere retail dealers and originate in
connection with retail sales by dealers of new John Deere equipment and used
equipment. The credit segment also purchases and finances retail notes
unrelated to John Deere, representing primarily recreational vehicle and
recreational marine product notes acquired from independent dealers of that
equipment and from marine mortgage service companies. The credit
subsidiaries also lease John Deere equipment to retail customers, finance
and service unsecured revolving charge accounts acquired from merchants in
the agricultural, lawn and grounds care and marine retail markets, and
provide wholesale financing for recreational vehicles and John Deere engine
inventories held by dealers of those products.
The Company's INSURANCE AND HEALTH CARE segment issues policies in the
United States and Canada primarily for: a general line of property and
casualty insurance to John Deere and non-Deere dealers and to the general
public; group life and group accident and health insurance for employees of
participating John Deere dealers; group life and group accident and health
insurance for employees of John Deere; life and annuity products to the
general public and credit physical damage insurance in connection with
certain retail sales of John Deere products financed by the credit
subsidiaries. This segment also provides health management programs and
related administrative services in the United States to corporate customers
and employees of John Deere.
The John Deere enterprise has manufactured agricultural machinery since
1837. The present Company was incorporated under the laws of Delaware in 1958.
The address of the Company's principal office is John Deere Road, Moline,
Illinois 61265-8098. Its telephone number is (309) 765-8000.
3
<PAGE>
RISK FACTORS RELATING TO CURRENCIES AND CURRENCY WARRANTS
Debt Securities denominated or payable in foreign Currencies and Currency
Warrants may entail significant risks. These risks include, without limitation,
the possibility of significant fluctuations in the foreign currency markets, the
imposition or modification of foreign exchange controls, potential illiquidity
in the secondary market and, in the case of Currency Warrants, the risk that
they will expire worthless. These risks will vary depending upon the Currency or
Currencies involved and, in the case of Currency Warrants, the particular form
of such Currency Warrants. These risks will be more fully described in the
prospectus supplement. See "Description of Debt Securities" and "Description of
Currency Warrants".
USE OF PROCEEDS
Except as may be described otherwise in a prospectus supplement, the net
proceeds from the sale of the Securities will be added to the general funds of
the Company and will be used for working capital and other general corporate
purposes. Such proceeds may be applied initially to the reduction of short-term
indebtedness.
DESCRIPTION OF DEBT SECURITIES
The Company may issue (either separately or together with other Offered
Securities) its Debt Securities from time to time. The Senior Securities will be
issued under an Indenture, as it may be supplemented from time to time (the
"Senior Indenture"), between the Company and The Chase Manhattan Bank (National
Association), Trustee (the "Senior Trustee"), and the Subordinated Securities
will be issued under an Indenture, as it may be supplemented from time to time
(the "Subordinated Indenture"), between the Company and The Bank of New York,
Trustee (the "Subordinated Trustee"). The term "Trustee" as used herein refers
to either the Senior Trustee or the Subordinated Trustee, as appropriate. The
forms of the Senior Indenture and the Subordinated Indenture (being sometimes
referred to herein collectively as the "Indentures" and individually as an
"Indenture") have been filed as exhibits to the registration statement. The
Indentures are subject to and governed by the Trust Indenture Act of 1939, as
amended ("TIA"). The following summary of certain provisions of the Indentures
does not purport to be complete and is subject to, and qualified in its entirety
by reference to, the Indentures, including the definitions of certain terms
therein. Parenthetical references below are to the Indentures or to the TIA, as
appropriate.
PROVISIONS APPLICABLE TO BOTH THE SENIOR AND SUBORDINATED INDENTURES
GENERAL
The Debt Securities will be unsecured obligations of the Company. The Senior
Securities will rank equally with all other unsecured and unsubordinated
indebtedness of the Company. The Subordinated Securities will be subordinated in
right of payment to the prior payment in full of the Senior Indebtedness of the
Company as described under "Subordinated Indenture Provisions -- Subordination".
Each Indenture provides that any Debt Securities proposed to be sold
pursuant to this prospectus and the accompanying prospectus supplement ("Offered
Debt Securities") and any Debt Securities issuable upon the exercise of Debt
Warrants or upon conversion or exchange of other Offered Securities ("Under-
lying Debt Securities"), as well as other unsecured debt securities of the
Company, may be issued under such Indenture in one or more series, in each case
as authorized from time to time by the Company. The particular terms of the
Offered Debt Securities and any Underlying Debt Securities and any modifications
of or additions to the general terms of the Debt Securities as described herein
that may be applicable in the case of the Offered Debt Securities or Underlying
Debt Securities are described in the prospectus supplement. Accordingly, for a
description of the terms of any Offered Debt Securities and Underlying Debt
Securities reference must be made to both the prospectus supplement relating
thereto and the description of Debt Securities set forth in this prospectus.
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<PAGE>
Reference is made to the prospectus supplement for the following terms of
the Offered Debt Securities, the Underlying Debt Securities or both, as the case
may be, being offered thereby:
(1) The title of such Debt Securities and whether such Debt Securities
will be Senior Securities or Subordinated Securities.
(2) The aggregate principal amount of such Debt Securities and any limit
on the aggregate principal amount of Debt Securities of such series.
(3) If other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of acceleration of the
maturity thereof or the method by which such portion will be determined.
(4) The date or dates, or the method by which such date or dates will be
determined or extended, on which the principal of such Debt Securities will
be payable.
(5) The rate or rates at which such Debt Securities will bear interest,
if any, or the method by which such rate or rates will be determined, the
date or dates from which any interest will accrue or the method by which
such date or dates will be determined, the date or dates on which such
interest, if any, will be payable and the Regular Record Date, if any, for
the interest payable on any Registered Security on any Interest Payment
Date, or the method by which any such date will be determined, and the basis
upon which interest will be calculated if other than that of a 360-day year
of twelve 30-day months.
(6) The period or periods within which, the price or prices at which,
the Currency or Currencies in which, and the other terms and conditions upon
which, such Debt Securities may be redeemed in whole or in part at the
option of the Company, if the Company is to have that option.
(7) The obligation, if any, of the Company to redeem, repay or purchase
such Debt Securities, in whole or in part, pursuant to any sinking fund or
analogous provision or at the option of a holder thereof and the period or
periods within which or the date or dates on which, the price or prices at
which, the Currency or Currencies in which and the other terms and
conditions upon which, such Debt Securities will be so redeemed, repaid or
purchased.
(8) Whether such Debt Securities are to be issuable as Registered
Securities, Bearer Securities or both, any restrictions applicable to the
offer, sale or delivery of Bearer Securities and the terms, if any, upon
which Bearer Securities of the series may be exchanged for Registered
Securities of the series and VICE VERSA (if permitted by applicable laws and
regulations), whether such Debt Securities will be issuable initially in
temporary global form, whether any such Debt Securities will be issuable in
permanent global form with or without coupons and, if so, whether beneficial
owners of interests in any such permanent global security may exchange such
interests for Debt Securities of such series in certificated form and of
like tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in the applicable Indenture, and, if Registered Securities are to
be issuable as a global security, the identity of the depository for such
Debt Securities.
(9) If other than U.S. dollars, the Currency or Currencies in which
payments of the principal of (or premium, if any) or interest, if any, on
such Debt Securities will be made or in which such Debt Securities will be
denominated.
(10) Whether the amount of payments of principal of (or premium, if any)
or interest, if any, on such Debt Securities may be determined with
reference to an index, formula or other method (which index, formula or
method may be based on one or more Currencies, commodities, equity indices
or other indices) and the manner in which such amounts will be determined.
(11) Whether the Company or a holder may elect payment of the principal
of (or premium, if any) or interest, if any, on such Debt Securities in one
or more Currencies, other than that in which such Debt Securities are
denominated or stated to be payable, the period or periods within which, and
the
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<PAGE>
terms and conditions upon which, such election may be made, and the time and
manner of determining the exchange rate between the Currency or Currencies
in which such Debt Securities are denominated or stated to be payable and
the Currency or Currencies in which such Debt Securities are to be so paid.
(12) The place or places, if any, other than or in addition to The City
of New York, where the principal of (and premium, if any) and interest, if
any, on such Debt Securities will be payable, where any Registered
Securities may be surrendered for registration of transfer, where such Debt
Securities may be surrendered for exchange, where Securities of a series
that are convertible or exchangeable may be surrendered for conversion or
exchange and where notices or demands to or upon the Company in respect of
such Debt Securities and the applicable Indenture may be served.
(13) The denomination or denominations in which such Debt Securities will
be issuable, if other than $1,000 or any integral multiple thereof in the
case of Registered Securities and $5,000 in the case of Bearer Securities.
(14) If other than the applicable Trustee, the identity of each Security
Registrar and/or Paying Agent.
(15) The date as of which any Bearer Securities of the series and any
temporary Debt Security issued in global form representing Outstanding
Securities of the series will be dated if other than the date of original
issuance of the first Debt Security of the series to be issued.
(16) The applicability, if at all, to such Debt Securities of the
provisions of Article Fourteen of the applicable Indenture described under
"Defeasance and Covenant Defeasance" and any provisions in modification of,
in addition to or in lieu of any of the provisions of such Article.
(17) The Person to whom any interest on any Registered Security of the
series will be payable, if other than the Person in whose name such
Registered Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer Security
of the series will be payable, if otherwise than upon presentation and
surrender of the coupons appertaining thereto as they severally mature, and
the extent to which, or the manner in which, any interest payable on a
temporary Debt Security issued in global form will be paid if other than in
the manner provided in the applicable Indenture.
(18) If such Debt Securities are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Debt Security
of such series) only upon receipt of certain certificates or other documents
or satisfaction of other conditions, the form and/or terms of such
certificates, documents or conditions.
(19) Whether and under what circumstances the Company will pay Additional
Amounts, as contemplated by Section 1004 of the applicable Indenture on such
Debt Securities to any holder who is not a United States person (including
any modification to the definition of such term as contained in the
applicable Indenture as originally executed) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will have
the option to redeem such Debt Securities rather than pay such Additional
Amounts (and the terms of any such option).
(20) The provisions, if any, granting special rights to the holders of
such Debt Securities upon the occurrence of such events as may be specified.
(21) Any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to such Debt Securities
(which Events of Default or covenants may not be consistent with the Events
of Default or covenants set forth in the general provisions of the
applicable Indenture).
(22) The designation of the initial Exchange Rate Agent, if any.
(23) Whether such Debt Securities will be convertible into or
exchangeable for shares of Common Stock of the Company or other Securities
and, if so, the terms and conditions upon which such Debt Securities will be
so convertible or exchangeable.
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(24) Any other terms of such Debt Securities.
If applicable, the prospectus supplement will also set forth information
concerning any other Securities offered thereby and a discussion of federal
income tax considerations relevant to the Securities being offered.
For purposes of this prospectus, any reference to the payment of principal
of (or premium, if any) or interest, if any, on such Debt Securities will be
deemed to include mention of the payment of any Additional Amounts required by
the terms of such Debt Securities.
Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities"). Federal income tax and other
considerations pertaining to any such Original Issue Discount Securities will be
discussed in the applicable prospectus supplement.
Each Indenture provides that the Debt Securities referred to on the cover
page of this prospectus and additional unsecured debt securities of the Company
unlimited as to aggregate principal amount may be issued in one or more series
thereunder, in each case as authorized from time to time by the Board of
Directors of the Company. (Section 301 of each Indenture) The applicable Debt
Securities referred to on the cover page of this prospectus and any additional
debt securities issued under an Indenture are herein collectively referred to,
when a single Trustee is acting for all debt securities issued under such
Indenture, as the "Indenture Securities". Each Indenture also provides that
there may be more than one Trustee there-under, each with respect to one or more
different series of Indenture Securities. See also "Resignation of Trustee"
herein. At a time when two or more Trustees are acting under either Indenture,
each with respect to only certain series, the term "Indenture Securities", as
used herein, will mean the one or more series with respect to which each
respective Trustee is acting. In the event that there is more than one Trustee
under either Indenture, the powers and trust obligations of each Trustee as
described herein will extend only to the one or more series of Indenture
Securities for which it is Trustee. If two or more Trustees are acting under
either Indenture, then the Indenture Securities for which each Trustee is acting
would in effect be treated as if issued under separate indentures.
The general provisions of the Indentures do not contain any provisions that
would limit the ability of the Company to incur indebtedness or that would
afford holders of Debt Securities protection in the event of a highly leveraged
or similar transaction involving the Company. However, the general provisions of
the Senior Indenture do provide that neither the Company nor any Restricted
Subsidiary (as defined below) will subject certain of its property or assets to
any mortgage or other encumbrance unless the Indenture Securities issued
thereunder are secured equally and ratably with or prior to such other
indebtedness thereby secured. See "Senior Indenture Provisions -- Limitation on
Liens" and "Senior Indenture Provisions -- Limitation on Sale and Lease-back
Transactions" below. Reference is made to the prospectus supplement for
information with respect to any deletions from, modifications of or additions to
the Events of Default or covenants of the Company that are described below,
including any addition of a covenant or other provision providing event risk or
similar protection.
Under the Indentures, the Company has the ability to issue Indenture
Securities with terms different from those of Indenture Securities previously
issued thereunder and, without the consent of the holders thereof, to reopen a
previous issue of a series of Indenture Securities and issue additional
Indenture Securities of such series (unless such reopening was restricted when
such series was created), in an aggregate principal amount determined by the
Company. (Section 301 of each Indenture)
CONVERSION AND EXCHANGE
If any Debt Securities will, by their terms, be convertible into or
exchangeable for Common Stock or other Securities, the prospectus supplement
relating thereto will set forth the terms and conditions of such conversion or
exchange, including the conversion price or exchange ratio (or the method of
calculating the same), the conversion or exchange period (or the method of
determining the same), whether conversion or exchange will be mandatory or at
the option of the holder or the Company, provisions for adjustment of the
conversion price or the exchange ratio and provisions affecting conversion or
exchange in the event of the
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redemption of such Debt Securities. Such terms may also include provisions under
which the number of shares of Common Stock or the number or amount of other
Securities to be received by the holders of such Debt Securities upon such
conversion or exchange would be calculated according to the market price of the
Common Stock or such other Securities as of a time stated in the prospectus
supplement.
DENOMINATIONS, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable solely as Registered Securities,
solely as Bearer Securities or as both Registered Securities and Bearer
Securities. Unless otherwise provided in the prospectus supplement, Debt
Securities denominated in U.S. dollars (other than global securities, which may
be of any denomination) are issuable in denominations of $1,000 and integral
multiples of $1,000 (in the case of Registered Securities) and in the
denomination of $5,000 (in the case of Bearer Securities). The Indentures also
provide that Debt Securities of a series may be issuable in global form. See
"Book-Entry Debt Securities". Unless otherwise indicated in the prospectus
supplement, Bearer Securities will have interest coupons attached. (Section 201
of each Indenture)
Registered Securities will be exchangeable for other Registered Securities
of the same series. If (but only if) provided in the prospectus supplement,
Bearer Securities (with all unmatured coupons, except as provided below, and all
matured coupons which are in default) of any series may be similarly exchanged
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor. If so provided, 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 will be surrendered without the coupon relating to such date for
payment of interest, and interest 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 applicable Indenture. Unless otherwise specified in the prospectus
supplement, Bearer Securities will not be issued in exchange for Registered
Securities. (Section 305 of each Indenture)
Registered Securities of a series may be presented for registration of
transfer and Debt Securities of a series may be presented for exchange (and, in
the case of convertible or exchangeable Debt Securities, for conversion into or
exchange for other Securities) (i) at each office or agency required to be
maintained by the Company for payment of such series, as described in "Payment
and Paying Agents", and (ii) at each other office or agency that the Company may
designate from time to time for such purposes. No service charge will be made
for any transfer or exchange of Debt Securities, but the Company may require
payment of any tax or other governmental charge payable in connection therewith.
(Section 305 of each Indenture)
The Company will not be required to (i) issue, register the transfer of or
exchange Debt Securities of any series during a period beginning at the opening
of business 15 days before any selection of Debt Securities of that series to be
redeemed and ending at the close of business on (A) if Debt Securities of the
series are issuable only as Registered Securities, the day of mailing of the
relevant notice of redemption and (B) if Debt Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Debt Securities of the series are also issuable as
Registered Securities and there is no publication, the day of mailing of the
relevant notice of redemption; (ii) register the transfer of or exchange any
Registered Security, or portion thereof, called for redemption, except the
unredeemed portion of any Registered Security being redeemed in part; (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
simultaneously surrendered for redemption; or (iv) issue, register the transfer
of or exchange any Debt Security which has been surrendered for repayment at the
option of the holder, except the portion, if any, of such Debt Security not to
be so repaid. (Section 305 of each Indenture)
PAYMENT AND PAYING AGENTS
Unless otherwise provided in the prospectus supplement, the Place of Payment
for a series issuable solely as Registered Securities will be The City of New
York, and the Company will initially designate the office of the Senior Trustee
and the corporate trust office of the Subordinated Trustee, respectively, for
this purpose. Notwithstanding the foregoing, at the option of the Company,
interest, if any, may be paid on Registered Securities (i) by check mailed to
the address of the Person entitled thereto as such Person's
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address appears in the Security Register or (ii) by wire transfer to an account
located in the United States maintained by the Person entitled thereto as
specified in the Security Register. (Sections 307, 1001 and 1002 of each
Indenture) Unless otherwise provided in the 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 of each Indenture)
If Debt Securities of a series are issuable solely as Bearer Securities or
as both Registered Securities and Bearer Securities, unless otherwise provided
in the prospectus supplement, the Company will be required to maintain an office
or agency (i) outside the United States at which, subject to any applicable laws
and regulations, the principal of (and premium, if any) and interest, if any, on
such series will be payable and (ii) in The City of New York for payments with
respect to any Registered Securities of such series (and for payments with
respect to Bearer Securities of such series in the limited circumstances
described below, but not otherwise); provided that, if required in connection
with any listing of such Debt Securities on the Luxembourg Stock Exchange or any
other stock exchange located outside the United States, the Company will
maintain an office or agency for such Debt Securities in any city located
outside the United States required by such stock exchange. (Section 1002 of each
Indenture) The initial locations of such offices and agencies will be specified
in the prospectus supplement. Unless otherwise provided in the prospectus
supplement, principal of (and premium, if any) and interest, if any, on Bearer
Securities may be paid by wire transfer to an account maintained by the Person
entitled thereto with a bank located outside the United States. (Sections 307
and 1002 of each Indenture) Unless otherwise provided in the prospectus
supplement, payment of installments of interest on any Bearer Securities on or
before Maturity will be made only against surrender of coupons for such interest
installments as they severally mature. (Section 1001 of each Indenture) Unless
otherwise provided in the prospectus supplement, 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 premium, if any)
and interest, if any, on Bearer Securities payable in U.S. dollars will be made
at the office 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 of each
Indenture)
The Company may from time to time designate additional offices or agencies,
approve a change in the location of any office or agency and, except as provided
above, rescind the designation of any office or agency.
Unless otherwise provided in the prospectus supplement, all payments of
principal of (and premium, if any) and interest, if any, on any Debt Security
that is payable in a Currency other than U.S. dollars will be made in U.S.
dollars in the event that such Currency (i) is a currency, and it ceases to be
used both by the government of the country that issued the currency and by a
central bank or other public institution of or within the international banking
community for the settlement of transactions, (ii) is the ECU, and it ceases to
be used both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities or
(iii) is any other currency unit (or composite currency) other than the ECU, and
it ceases to be used for the purposes for which it was established (each of the
events described in clauses (i) through (iii), a "Conversion Event"). (Section
312 of each Indenture)
EVENTS OF DEFAULT
Each Indenture provides, with respect to Debt Securities of a series
outstanding thereunder, that the following will constitute Events of Default:
(i) default in the payment of any interest upon any Debt Security of that
series, or of any coupon appertaining thereto, when the same becomes due and
payable, continued for 30 days; (ii) default in the payment of the principal of
(or premium, if any, on) any Debt Security of that series at its maturity; (iii)
default in the deposit of any sinking fund payment when due by the terms of any
Debt Security of that series; (iv) default in the performance, or breach, of any
covenant or agreement of the Company in the applicable Indenture with respect to
any Debt Security of that series, continued for 60 days
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after written notice to the Company; (v) certain events of bankruptcy,
insolvency or reorganization affecting the Company; and (vi) any other Event of
Default provided with respect to Debt Securities of that series. (Section 501 of
each Indenture) The Company is required to file with the applicable Trustee,
annually, an officer's certificate as to the Company's compliance with all
conditions and covenants under the applicable Indenture. (Section 1005 of each
Indenture) Each Indenture provides that the applicable Trustee may withhold
notice to the holders of Debt Securities of a series of any default (except
payment defaults on any Debt Securities of that series) if it considers it in
the interest of the holders of Debt Securities of such series to do so. (Section
601 of each Indenture)
If an Event of Default with respect to Debt Securities of a series has
occurred and is continuing, the applicable Trustee or the holders of not less
than 25% in principal amount of Outstanding Debt Securities of that series may
declare the principal amount (or, if any Debt Securities of that series are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal amount as may be specified in the terms thereof) of all of the Debt
Securities of that series due and payable immediately. (Section 502 of each
Indenture)
Subject to the provisions of the applicable Indenture relating to the duties
of the Trustee thereunder, in case an Event of Default with respect to Debt
Securities of a series has occurred and is continuing, that Trustee is under no
obligation to exercise any of its rights or powers under such Indenture at the
request, order or direction of the applicable holders of Debt Securities of that
series, unless such holders have offered such Trustee reasonable indemnity
against the expenses and liabilities which might be incurred by it in compliance
with such request. (Section 507 of each Indenture and TIA Section 315) Subject
to such provisions for the indemnification of the applicable Trustee, the
holders of a majority in principal amount of the Outstanding Debt Securities of
such series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to such Trustee, or
exercising any trust or power conferred on such Trustee with respect to the Debt
Securities of that series. (Section 512 of each Indenture)
The holders of not less than a majority in principal amount of the
Outstanding Debt Securities of a series may, on behalf of the holders of all
Debt Securities of such series and any related coupons, waive any past default
under the applicable Indenture with respect to such series and its consequences,
except a default (i) in the payment of the principal of (or premium, if any) or
interest, if any, on any Debt Security of such series or any related coupons or
(ii) in respect of a covenant or provision that cannot be modified or amended
without the consent of the holder of each Outstanding Debt Security of such
series affected thereby. (Section 513 of each Indenture)
MERGER OR CONSOLIDATION
Each Indenture provides that the Company may not consolidate with or merge
with or into any other corporation or convey or transfer its properties and
assets substantially as an entirety to any Person, unless (i) either the Company
is the continuing corporation or (ii) such corporation or Person assumes by
supplemental indenture the due and punctual payment of the principal (and
premium, if any) and interest, if any, on the Indenture Securities issued
thereunder and the performance of every covenant thereunder and, in either case,
immediately after the transaction no default shall exist. In addition, under the
Senior Indenture, no such consolidation, merger or transfer may be made if as a
result thereof any property or assets of the Company or a Restricted Subsidiary
would become subject to any mortgage or other encumbrance, unless either (i)
such mortgage or other encumbrance could be created pursuant to Section 1006 of
such Indenture (see "Senior Indenture Provisions -- Limitation on Liens")
without equally and ratably securing the Indenture Securities issued under such
Indenture or (ii) such Indenture Securities are secured equally and ratably with
or prior to the debt secured by such mortgage or other encumbrance. (Section 801
of each Indenture)
MODIFICATION OR WAIVER
Modification and amendment of an Indenture may be made by the Company and
the Trustee thereunder with the consent of the holders of not less than a
majority in principal amount of all Outstanding Indenture Securities issued
thereunder that are affected by such modification or amendment; provided that
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no such modification or amendment may, without the consent of the holder of each
Outstanding Indenture Security affected thereby, among other things: (i) change
the Stated Maturity of the principal of (or premium, if any, on) or any
installment of principal of or interest on any such Indenture Security; (ii)
reduce the principal amount of, the rate of interest on or any Additional
Amounts payable in respect of, or any premium payable upon the redemption of,
any such Indenture Security; (iii) change any obligation of the Company to pay
Additional Amounts in respect of any such Indenture Security; (iv) reduce the
portion of the principal of an Original Issue Discount Security or Indexed
Security that would be due and payable upon a declaration of acceleration of the
Maturity thereof or provable in bankruptcy; (v) adversely affect any right of
repayment at the option of the holder of any such Indenture Security; (vi)
change the place or Currency of payment of principal of, or any premium or
interest on, any such Indenture Security; (vii) impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof or on or after any Redemption Date or Repayment Date therefor; (viii)
adversely affect any right to convert or exchange any such Indenture Security as
may be provided pursuant to such Indenture; (ix) reduce the percentage in
principal amount of such Outstanding Indenture Securities (or of such
Outstanding Indenture Securities of any series, as the case may be), the consent
of whose holders is required to amend or waive compliance with certain
provisions of such Indenture or to waive certain defaults thereunder; (x) reduce
the requirements for voting or quorum described below; or (xi) modify any of the
provisions relating to supplemental indentures requiring the consent of holders,
relating to the waiver of past defaults or relating to the waiver of certain
covenants, except to increase the percentage of such Outstanding Indenture
Securities required for such actions or to provide that certain other provisions
of such Indenture cannot be modified or waived without the consent of the holder
of each Outstanding Indenture Security affected thereby. (Section 902 of each
Indenture)
In addition, under the Subordinated Indenture, no modification or amendment
thereof may, without the consent of the holder of each Outstanding Subordinated
Security affected thereby, modify any of the provisions of such Indenture
relating to the subordination of the Subordinated Securities in a manner adverse
to the holders thereof and no such modification or amendment may adversely
affect the rights of any holder of Senior Indebtedness under Article Sixteen of
such Indenture (described under the caption "Subordinated Indenture Provisions
- -- Subordination") without the consent of such holder of Senior Indebtedness.
(Sections 902 and 907 of the Subordinated Indenture)
The holders of a majority in aggregate principal amount of Outstanding
Indenture Securities have the right to waive compliance by the Company with
certain covenants in the applicable Indenture. (Section 1008 of the Senior
Indenture and Section 1006 of the Subordinated Indenture)
Modification and amendment of an Indenture may be made by the Company and
the Trustee thereunder without the consent of any holder for any of the
following purposes: (i) to evidence the succession of another Person to the
Company as obligor under such Indenture; (ii) to add to the covenants of the
Company for the benefit of the holders of all or any series of Indenture
Securities issued thereunder and any related coupons or to surrender any right
or power conferred upon the Company thereunder; (iii) to add Events of Default
for the benefit of the holders of all or any series of Indenture Securities;
(iv) to add or change any provisions of such Indenture to facilitate the
issuance of, or to liberalize certain terms of, Bearer Securities, or to permit
or facilitate the issuance of Indenture Securities in uncertificated form,
provided that any such actions do not adversely affect the holders of such
Indenture Securities or any related coupons; (v) to change or eliminate any
provisions of such Indenture, provided that any such change or elimination will
become effective only when there are no such Indenture Securities Outstanding of
any series created prior thereto which are entitled to the benefit of such
provisions; (vi) in the case of the Senior Securities, to secure the Indenture
Securities under the Senior Indenture pursuant to the requirements of Section
801 or Section 1006 of the Senior Indenture, or otherwise; (vii) to establish
the form or terms of Indenture Securities of any series and any related coupons,
including any provisions and procedures relating to conversion or exchange;
(viii) to provide for the acceptance of appointment by a successor Trustee or
facilitate the administration of the trusts under such Indenture by more than
one Trustee; (ix) to cure any ambiguity, defect or inconsistency in such
Indenture, provided such action does not adversely affect the interests of
holders of Indenture Securities of a series issued thereunder or any related
coupons in any
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material respect; or (x) to supplement any of the provisions of such Indenture
to the extent necessary to permit or facilitate defeasance and discharge of any
series of Indenture Securities thereunder, provided that such action shall not
adversely affect the interests of the holders of any such Indenture Securities
and any related coupons or of any other series of Indenture Securities in any
material respect. (Section 901 of each Indenture)
In determining whether the holders of the requisite principal amount of
Outstanding Indenture Securities have given any request, demand, authorization,
direction, notice, consent or waiver under either Indenture or whether a quorum
is present at a meeting of holders of Indenture Securities thereunder, (i) the
principal amount of an Original Issue Discount Security that will be deemed to
be outstanding will be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof, (ii) the principal amount of an Indenture Security denominated in a
foreign Currency or Currencies will be the U.S. dollar equivalent, determined on
the trade date for such Indenture Security, of the principal amount thereof (or,
in the case of an Original Issue Discount Security or Indexed Security, the U.S.
dollar equivalent on the trade date of such Indenture Security of the amount
determined as provided in (i) above or (iii) below), (iii) the principal amount
of an Indexed Security that may be counted in making such determination or
calculation and that will be deemed outstanding for such purpose will be equal
to the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Indexed Security pursuant to
Section 301 of such Indenture and (iv) Indenture Securities owned by the Company
or any other obligor upon the Indenture Securities or any Affiliate of the
Company or of such other obligor will be disregarded. (Section 101 of each
Indenture)
Each Indenture contains provisions for convening meetings of the holders of
Indenture Securities of a series if Indenture Securities of that series are
issuable as Bearer Securities. (Section 1501 of each Indenture) A meeting may be
called at any time by the applicable Trustee, and also, upon request, by the
Company or the holders of at least 10% in principal amount of the Outstanding
Indenture Securities of that series, in any such case upon notice given as
provided in the applicable Indenture. (Section 1502 of each Indenture) Except
for any consent that must be given by the holder of each Indenture Security
affected thereby, as described above, any resolution presented at a meeting (or
an 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 Indenture Securities of that series; provided, however, that
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 principal
amount of the Outstanding Indenture Securities of a series, may be adopted at a
meeting (or an adjourned meeting duly reconvened) at which a quorum is present
by the affirmative vote of the holders of such specified percentage in principal
amount of the Outstanding Indenture Securities of that series. Any resolution
passed or decision taken at any meeting of holders of Indenture Securities of a
series duly held in accordance with that Indenture will be binding on all
holders of Indenture Securities of that series and any related coupons. The
quorum at any meeting called to adopt a resolution will be persons holding or
representing a majority in principal amount of the Outstanding Indenture
Securities of a series; provided, however, that, if any action is to be taken at
such meeting with respect to a consent or waiver which may be given by the
holders of not less than a specified percentage in principal amount of the
Outstanding Indenture Securities of a series, the persons holding or
representing such specified percentage in principal amount of the Outstanding
Indenture Securities of that series will constitute a quorum. (Section 1504 of
each Indenture)
Notwithstanding the foregoing provisions, if any action is to be taken at a
meeting of holders of Indenture Securities of a series with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action that the applicable Indenture expressly provides may be made, given or
taken by the holders of a specified percentage in principal amount of all
Outstanding Indenture Securities affected thereby or of the holders of such
series and one or more additional series: (i) there shall be no minimum quorum
requirement for such meeting and (ii) the principal amount of the Outstanding
Indenture Securities of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or
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other action will be taken into account in determining whether such request,
demand, authorization, direction, notice, consent, waiver or other action has
been made, given or taken under such Indenture. (Section 1504 of each Indenture)
SATISFACTION AND DISCHARGE; DEFEASANCE AND COVENANT DEFEASANCE
The Company may discharge certain obligations to holders of Debt Securities
of a series that have not already been delivered to the applicable Trustee for
cancellation and that either have become due and payable or are by their terms
due and payable within one year (or scheduled for redemption within one year) by
irrevocably depositing with the applicable Trustee, in trust, funds in an amount
sufficient to pay the entire indebtedness on such Debt Securities for principal
(and premium, if any) and interest, if any, with respect thereto, to the date of
such deposit (if such Debt Securities have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be. (Section 401 of each
Indenture)
Each Indenture provides that, if the provisions of Article Fourteen are made
applicable to the Debt Securities of or within a series and any related coupons
pursuant to Section 301 thereunder, the Company may elect either (i) to defease
and be discharged from any and all obligations with respect to such Debt
Securities and coupons (except for the obligations to pay Additional Amounts, if
any; to register the transfer or exchange of such Debt Securities and coupons;
to replace temporary or mutilated, destroyed, lost or stolen Debt Securities and
coupons; to maintain one or more offices or agencies in respect of such Debt
Securities and coupons; and to hold moneys for payment in trust) ("defeasance")
or (ii) to be released (a) in the case of any such Debt Securities that are
Senior Securities, from its obligations under Sections 1006 and 1007 of such
Indenture (being the restrictions described under "Senior Indenture Provisions
- -- Limitation on Liens" and "Senior Indenture Provisions -- Limitation on Sale
and Leaseback Transactions") or (b) in the case of any such Debt Securities
(whether they are Senior or Subordinated Securities), if so provided in the
prospectus supplement, from its obligations with respect to any other covenant
relating to such Debt Securities and, in the case of either (a) or (b) above,
any omission to comply with such obligations will not constitute a default or an
Event of Default with respect to such Debt Securities and coupons ("covenant
defeasance"), in either case upon the irrevocable deposit by the Company with
the applicable Trustee (or other qualifying trustee), in trust, of (1) an
amount, in the Currency or Currencies in which such Debt Securities and coupons
are then specified as payable at Stated Maturity, (2) Government Obligations (as
defined below) applicable to such Debt Securities and coupons (with such
applicability being determined on the basis of the Currency in which such Debt
Securities are then specified as payable at Stated Maturity) that, through the
payment of principal and interest in accordance with their terms, will provide
money in an amount, or (3) a combination thereof in an amount, sufficient to pay
the principal of (and premium, if any) and interest, if any, on such Debt
Securities and coupons, and any mandatory sinking fund or analogous payments
thereon, on the scheduled due dates therefor.
Such a trust may only be established if, among other things, the Company has
delivered to the applicable Trustee an Opinion of Counsel (as specified in the
applicable Indenture) to the effect that the holders of such Debt Securities and
related coupons to be defeased will not recognize income, gain or loss for
United States federal income tax purposes as a result of such defeasance or
covenant defeasance and will be subject to United States federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such defeasance or covenant defeasance had not occurred, and such
Opinion of Counsel, in the case of defeasance under clause (i) above, must refer
to and be based upon a ruling of the Internal Revenue Service or a change in
applicable United States federal income tax law occurring after the date of the
applicable Indenture. (Article Fourteen of each Indenture)
"Government Obligations" means securities which are (i) direct obligations
of the United States or the government which issued the foreign Currency in
which the Debt Securities of that series are payable, for the payment of which
its full faith and credit is pledged, or (ii) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United States
or the government which issued such foreign Currency, as the case may be, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States or such other government, which, in either case,
are not callable or redeemable at the option of the issuer thereof. Such term
also includes a depository receipt issued by a bank
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or trust company as custodian with respect to any such Government Obligation or
a specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from the amount received by such custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the Government
Obligation evidenced by such depository receipt. (Section 101 of each Indenture)
Unless otherwise provided in the prospectus supplement, if, after the
Company has deposited funds, Government Obligations or both to effect defeasance
or covenant defeasance with respect to Debt Securities of a series, (i) the
holder of a Debt Security of such series is entitled to, and does, elect
pursuant to the terms of such Debt Security to receive payment in a Currency
other than that in which such deposit has been made in respect of such Debt
Security or (ii) a Conversion Event occurs, then the indebtedness represented by
such Debt Security will be deemed to have been, and will be, fully discharged
and satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Debt Security as they become due out of the proceeds
yielded by converting the amount so deposited in respect of such Debt Security
into the Currency in which such Debt Security becomes payable as a result of
such election or such Conversion Event based on the applicable Market Exchange
Rate. (Section 1405 of each Indenture) Unless otherwise provided in the
prospectus supplement, all payments of principal of (and premium, if any) and
interest, if any, on any Debt Security that is payable in a foreign Currency
with respect to which a Conversion Event occurs shall be made in U.S. dollars.
(Section 312 of each Indenture)
In the event the Company effects covenant defeasance with respect to any
Debt Securities and any related coupons and such Debt Securities and coupons are
declared due and payable because of the occurrence of any Event of Default other
than the Event of Default described in clause (iv) under "Events of Default"
with respect to Sections 1006 and 1007 of the Senior Indenture (which Sections
would no longer be applicable to such Debt Securities or related coupons) or
described in clause (iv) or (vi) under "Events of Default" with respect to any
other covenant with respect to which there has been defeasance, the amount of
Government Obligations and funds on deposit with the applicable Trustee will be
sufficient to pay amounts due on such Debt Securities and coupons at the time of
their Stated Maturity but may not be sufficient to pay amounts due on such Debt
Securities and coupons at the time of the acceleration resulting from such Event
of Default. In such a case, the Company would remain liable to make payment of
such amounts due at the time of acceleration.
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If the Trustee or any Paying Agent is unable to apply any money in
accordance with the applicable Indenture by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under such
Indenture and such Debt Securities and coupons shall be revived and reinstated
as though no deposit had occurred pursuant to such Indenture, until such time as
such Trustee or Paying Agent is permitted to apply all such money in accordance
with such Indenture; provided, however, that, if the Company makes any payment
of principal of (or premium, if any) or interest, if any, on any such Debt
Security or coupon following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the holders of such Debt Securities and
coupons to receive such payment from the money held by such Trustee or Paying
Agent.
The prospectus supplement may further describe the provisions, if any,
permitting such defeasance or covenant defeasance, including any modifications
to the provisions described above, with respect to the Debt Securities of or
within a particular series and any related coupons.
BOOK-ENTRY DEBT SECURITIES
Debt Securities of a series may be issued in whole or in part in global form
that will be deposited with, or on behalf of, a depository identified in the
prospectus supplement. Global securities may be issued in either registered or
bearer form and in either temporary or permanent form (each a "Global
Security"). Unless otherwise provided in the prospectus supplement, Debt
Securities that are represented by a Global Security will be issued in
denominations of $1,000 and any integral multiple thereof, and will be issued in
registered form only, without coupons. Payments of principal of (and premium, if
any) and interest, if any, on Debt Securities represented by a Global Security
will be made by the Company to the applicable Trustee and then by such Trustee
to the depository.
The Company anticipates that any Global Securities will be deposited with,
or on behalf of, The Depository Trust Company ("DTC"), New York, New York, that
such Global Securities will be registered in the name of DTC's nominee, and that
the following provisions will apply to the depository arrangements with respect
to any such Global Securities. Additional or differing terms of the depository
arrangements will be described in the prospectus supplement.
So long as DTC or its nominee is the registered owner of a Global Security,
DTC or its nominee, as the case may be, will be considered the sole holder of
the Debt Securities represented by such Global Security for all purposes under
the applicable Indenture. Except as provided below, owners of beneficial
interests in a Global Security will not be entitled to have Debt Securities
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Debt Securities in certificated
form and will not be considered the owners or holders thereof under the
applicable Indenture. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in certificated form;
accordingly, such laws may limit the transferability of beneficial interests in
a Global Security.
If (i) DTC is at any time unwilling or unable to continue as depository and
a successor depository is not appointed by the Company within 90 days following
notice to the Company, (ii) the Company determines, in its sole discretion, not
to have any Debt Securities represented by one or more Global Securities, or
(iii) an Event of Default under the applicable Indenture has occurred and is
continuing, then the Company will issue individual Debt Securities in
certificated form in exchange for beneficial interests in such Global
Securities. In any such instance, an owner of a beneficial interest in a Global
Security will be entitled to physical delivery of individual Debt Securities in
certificated form of like tenor and rank, equal in principal amount to such
beneficial interest and to have such Debt Securities in certificated form
registered in its name. Unless otherwise provided in the prospectus supplement,
Debt Securities so issued in certificated form will be issued in denominations
of $1,000 or any integral multiple thereof, and will be issued in registered
form only, without coupons.
The following is based on information furnished by DTC:
DTC will act as securities depository for the Debt Securities. The Debt
Securities will be issued as fully registered securities registered in the
name of Cede & Co. (DTC's partnership nominee). One
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fully registered Debt Security certificate is issued with respect to each
$150 million of principal amount of the Debt Securities of a series, and an
additional certificate will be issued with respect to any remaining
principal amount of such series.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code, and
a "clearing agency" registered pursuant to the provisions of Section 17A of
the Securities Exchange Act of 1934. DTC holds securities that its
participants ("Participants") deposit with DTC. DTC also facilitates the
settlement among Participants of securities transactions, such as transfers
and pledges, in deposited securities through electronic computerized
book-entry changes in Participants' accounts, thereby eliminating the need
for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations ("Direct Participants"). DTC is
owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a
Direct Participant, either directly or indirectly ("Indirect Participants").
The rules applicable to DTC and its Participants are on file with the
Commission.
Purchases of Debt Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Debt
Securities on DTC's records. The ownership interest of each actual purchaser
of each Debt Security ("Beneficial Owner") is in turn recorded on the Direct
and Indirect Participants' records. A Beneficial Owner does not receive
written confirmation from DTC of its purchase, but such Beneficial Owner is
expected to receive a written confirmation providing details of the
transaction, as well as periodic statements of its holdings, from the Direct
or Indirect Participant through which such Beneficial Owner entered into the
transaction. Transfers of ownership interests in Debt Securities are
accomplished by entries made on the books of Participants acting on behalf
of Beneficial Owners. Beneficial Owners do not receive certificates
representing their ownership interests in Debt Securities, except in the
event that use of the book-entry system for the Debt Securities is
discontinued.
To facilitate subsequent transfers, the Debt Securities are registered
in the name of DTC's partnership nominee, Cede & Co. The deposit of the Debt
Securities with DTC and their registration in the name of Cede & Co. effects
no change in beneficial ownership. DTC has no knowledge of the actual
Beneficial Owners of the Debt Securities; DTC records reflect only the
identity of the Direct Participants to whose accounts Debt Securities are
credited, which may or may not be the Beneficial Owners. The Participants
remain responsible for keeping account of their holdings on behalf of their
customers.
Delivery of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners are governed by
arrangements among them, subject to any statutory or regulatory requirements
as may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to
determine by lot the amount of the interest of each Direct Participant in
such issue to be redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to the Debt
Securities. Under its usual procedures, DTC mails a proxy (an "Omnibus
Proxy") to the issuer as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Debt Securities are credited on the
record date (identified on a list attached to the Omnibus Proxy).
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Payment of principal (and premium, if any) and interest, if any, on the
Debt Securities will be made to DTC. DTC's practice is to credit Direct
Participants' accounts on the payable date in accordance with their
respective holdings as shown on DTC's records unless DTC has reason to
believe that it will not receive payment on the payable date. Payments by
Participants to Beneficial Owners will be governed by standing instructions
and customary practices, as is the case with securities held for the
accounts of customers in bearer form or registered in "street name", and
will be the responsibility of such Participant and not of DTC, the Paying
Agent or the Company, subject to any statutory or regulatory requirements as
may be in effect from time to time. Payment of principal (and premium, if
any) and interest to DTC is the responsibility of the Company or the Paying
Agent, disbursement of such payments to Direct Participants is the
responsibility of DTC, and disbursement of such payments to the Beneficial
Owners is the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to the Debt Securities at any time by giving reasonable notice to
the Company or the Paying Agent. Under such circumstances, in the event that
a successor securities depository is not appointed, Debt Security
certificates are required to be printed and delivered.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Debt Security certificates will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources (including DTC) that the Company believes to be
reliable, but the Company takes no responsibility for the accuracy thereof.
Unless stated otherwise in the prospectus supplement, the underwriters or
agents with respect to a series of Debt Securities issued as Global Securities
will be Direct Participants in DTC.
None of the Company, any underwriter or agent, the applicable Trustee or any
applicable Paying Agent will have any responsibility or liability for any aspect
of the records relating to, or payments made on account of beneficial interests
in a Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
RESIGNATION OF TRUSTEE
Each Trustee may resign or be removed with respect to one or more series of
Indenture Securities and a successor Trustee may be appointed to act with
respect to such series. (Section 608 of each Indenture) In the event that two or
more persons are acting as Trustee with respect to different series of Indenture
Securities under one of the Indentures, each such Trustee will be a Trustee of a
trust thereunder separate and apart from the trust administered by any other
such Trustee (Section 609 of each Indenture), and any action described herein to
be taken by the "Trustee" may then be taken by each such Trustee with respect
to, and only with respect to, the one or more series of Indenture Securities for
which it is Trustee.
SENIOR INDENTURE PROVISIONS
LIMITATION ON LIENS
The Company covenants in the Senior Indenture that it will not, nor will it
permit any Restricted Subsidiary to, incur, assume or guarantee any debt (herein
referred to as "Debt") if such Debt is secured by any mortgage, security
interest, pledge, lien or other encumbrance (herein referred to as "mortgage" or
"mortgages") upon any Important Property (as defined below) of the Company or
any Restricted Subsidiary or any shares of stock or indebtedness of any
Restricted Subsidiary, whether owned at the date of such Indenture or thereafter
acquired, without effectively securing the Indenture Securities issued under the
Senior Indenture equally and ratably with or prior to such Debt. The foregoing
restriction will not apply to: (i) mortgages on any property acquired,
constructed or improved after the date of such Indenture which are created or
assumed within 120 days after such acquisition, construction or improvement to
secure or provide for the payment of the purchase price or cost thereof incurred
after the date of such Indenture, or existing mortgages on property acquired
after the date of such Indenture, provided that such mortgages do not apply
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to any Important Property theretofore owned by the Company or a Restricted
Subsidiary other than theretofore unimproved real property; (ii) existing
mortgages on any property acquired from a corporation consolidated with or
merged into, or substantially all of the assets of which are acquired by, the
Company or a Restricted Subsidiary; (iii) mortgages on property of any
corporation existing at the time it becomes a Restricted Subsidiary; (iv)
mortgages securing Debt owed by a Restricted Subsidiary to the Company or to
another Restricted Subsidiary; (v) mortgages in favor of governmental bodies to
secure advance or other payments pursuant to any contract or statute or to
secure indebtedness incurred to finance the purchase price or cost of
constructing or improving the property subject to such mortgages, including
mortgages to secure tax exempt pollution control revenue bonds; (vi) sales of
receivables that are reflected as secured indebtedness; (vii) certain other
liens not related to the borrowing of money; (viii) extensions, renewals or
replacements of the foregoing; (ix) mortgages on margin stock owned by the
Company and Restricted Subsidiaries to the extent such margin stock exceeds 25%
of the fair market value of Important Property of the Company and the Restricted
Subsidiaries plus certain stock and indebtedness of the Restricted Subsidiaries;
and (x) mortgages on Important Property of, or any shares of stock or
indebtedness issued or incurred by, any Restricted Subsidiary organized under
the laws of Canada. (Section 1006 of the Senior Indenture)
The foregoing restrictions do not apply to the incurrence, assumption or
guarantee by the Company or any Restricted Subsidiary of Debt secured by a
mortgage that would otherwise be subject to such restrictions up to an aggregate
amount which, together with all other Debt secured by mortgages (not including
secured Debt permitted under the foregoing exceptions) and the Attributable Debt
(generally defined as the discounted present value of net rental payments)
associated with Sale and Lease-back Transactions existing at such time (other
than Sale and Lease-back Transactions the proceeds of which have been or will be
applied as set forth in clause (iii) or (iv) under "Limitation on Sale and
Lease-back Transactions" below, and other than Sale and Lease-back Transactions
in which the property involved would have been permitted to be mortgaged under
clause (i) above), does not exceed 5% of Consolidated Net Tangible Assets of the
Company and its consolidated subsidiaries, as shown on the audited consolidated
balance sheet contained in the latest annual report to stockholders of the
Company. (Section 1006 of the Senior Indenture)
The term "Restricted Subsidiary" is defined in the Senior Indenture to mean
any subsidiary (i) engaged in, or whose principal assets consist of property
used by the Company or any Restricted Subsidiary in, the manufacture of products
within the United States or Canada or in the sale of products principally to
customers located in the United States or Canada except any corporation which is
a retail dealer in which the Company has, directly or indirectly, an investment
under an arrangement providing for the liquidation of such investment; or (ii)
which the Company shall designate as a Restricted Subsidiary. (Section 1006 of
the Senior Indenture)
The term "Important Property" is defined in the Senior Indenture to include:
(i) any manufacturing plant, including its machinery and equipment, used by the
Company or a Restricted Subsidiary primarily for the manufacture of products to
be sold by the Company or such Restricted Subsidiary; (ii) the executive office
and administrative building of the Company in Moline, Illinois; and (iii)
research and development facilities; except, in each case, property the fair
value of which as determined by the Board of Directors does not at the time
exceed 1% of Consolidated Net Tangible Assets of the Company and its
consolidated subsidiaries, as shown on the audited consolidated balance sheet
contained in the latest annual report to stockholders of the Company. (Section
1006 of the Senior Indenture)
LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS
The Company covenants in the Senior Indenture that it will not nor will it
permit any Restricted Subsidiary to enter into any arrangement with any Person
providing for the leasing to the Company or any Restricted Subsidiary of any
Important Property (except for temporary leases for a term, including renewals,
of not more than three years) which has been or is to be sold by the Company or
such Restricted Subsidiary to such Person unless the net proceeds are at least
equal to the fair value (as determined by the Board of Directors) of such
property and either (i) the Company or such Restricted Subsidiary would be
entitled to incur Debt secured by a mortgage on such Important Property without
securing the Indenture Securities issued under the Senior Indenture under clause
(i) of the first paragraph under "Limitation on Liens" above;
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(ii) the Attributable Debt associated therewith would be an amount permitted
under the second paragraph under "Limitation on Liens" above; (iii) the Company
applies an amount equal to the fair value of such Important Property to the
retirement of Indenture Securities or certain long-term indebtedness of the
Company or a Restricted Subsidiary, as the case may be; or (iv) the Company
enters into a BONA FIDE commitment to expend for the acquisition or improvement
of an Important Property an amount at least equal to the fair value of such
property. (Section 1007 of the Senior Indenture)
SUBORDINATED INDENTURE PROVISIONS
SUBORDINATION
Upon any distribution of assets of the Company upon any dissolution, winding
up, liquidation or reorganization, the payment of the principal of (and premium,
if any) and interest, if any, on Subordinated Securities is to be subordinated
to the extent provided in the Subordinated Indenture in right of payment to the
prior payment in full of all Senior Indebtedness (Sections 1601 and 1602 of the
Subordinated Indenture), but the obligation of the Company to make payment of
principal (and premium, if any) or interest, if any, on Subordinated Securities
will not otherwise be affected. (Section 1604 of the Subordinated Indenture). In
addition, no payment on account of principal (and premium, if any), sinking fund
or interest, if any, may be made on the Subordinated Securities unless full
payment of all amounts then due in respect of the principal (and premium, if
any), sinking fund and interest on Senior Indebtedness has been made or duly
provided for in money or money's worth. (Section 1603 of the Subordinated
Indenture) In the event that, notwithstanding the foregoing, any such payment by
the Company is received by the Subordinated Trustee or the holders of any of the
Subordinated Securities before all Senior Indebtedness is paid in full, such
payment or distribution will be paid over to the holders of such Senior
Indebtedness or on their behalf for application to the payment of all such
Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been
paid in full, after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness. Subject to the payment in full of all
Senior Indebtedness upon such distribution of assets of the Company, the holders
of the Subordinated Securities will be subrogated to the rights of the holders
of the Senior Indebtedness to the extent of payments made to the holders of such
Senior Indebtedness out of the distributive share of the Subordinated
Securities. (Section 1602 of the Subordinated Indenture) By reason of such
subordination, in the event of a distribution of assets upon insolvency, certain
general creditors of the Company may recover more, ratably, than holders of the
Subordinated Securities. The Subordinated Indenture provides that the
subordination provisions thereof will not apply to money and securities held in
trust pursuant to the defeasance provisions of the Subordinated Indenture.
(Section 1402 of the Subordinated Indenture)
Senior Indebtedness is defined in the Subordinated Indenture as the
principal of (and premium, if any) and unpaid interest on (i) indebtedness of
the Company (including indebtedness of others guaranteed by the Company),
whether outstanding on the date of the Subordinated Indenture or thereafter
created, incurred, assumed or guaranteed, for money borrowed (other than the
Indenture Securities issued under the Subordinated Indenture and the 5 1/2%
Convertible Subordinated Debentures due 2001), unless in the instrument creating
or evidencing the same or pursuant to which the same is outstanding it is
provided that such indebtedness is not senior or prior in right of payment to
the Subordinated Securities and (ii) renewals, extensions, modifications and
refundings of any such indebtedness. (Section 101 of the Subordinated Indenture)
If this prospectus is being delivered in connection with the offering of a
series of Subordinated Securities, the accompanying prospectus supplement or the
information incorporated by reference will set forth the approximate amount of
Senior Indebtedness outstanding as of a recent date.
THE TRUSTEES UNDER THE INDENTURES
The Chase Manhattan Bank (National Association) and The Bank of New York are
two of a number of banks with which the Company maintains ordinary banking
relationships and from which the Company has obtained credit facilities and
lines of credit. The Chase Manhattan Bank (National Association) and The
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Bank of New York each also serves as trustee under other indentures covering
unsecured senior debt securities of the Company. The Bank of New York also
serves as trustee under indentures under which a subsidiary of the Company is
the obligor.
DESCRIPTION OF DEBT WARRANTS
The Company may issue (either separately or together with other Offered
Securities) Debt Warrants to purchase Underlying Debt Securities (the "Offered
Debt Warrants"). Such Debt Warrants will be issued under warrant agreements
(each a "Debt Warrant Agreement") to be entered into between the Company and a
bank or trust company, as warrant agent (the "Debt Warrant Agent"), all as shall
be set forth in the prospectus supplement. A copy of the form of Debt Warrant
Agreement has been filed as an exhibit to the registration statement. The
following summary of certain provisions of the Debt Warrant Agreement does not
purport to be complete and is subject to, and qualified in its entirety by
reference to, all the provisions of the Debt Warrant Agreement including the
definitions of certain terms.
GENERAL
Reference is made to the prospectus supplement for the terms of the Offered
Debt Warrants, including the following:
(1) The title and aggregate number of such Debt Warrants.
(2) The title, rank, aggregate principal amount and terms of the
Underlying Debt Securities purchasable upon exercise of such Debt Warrants.
(3) The principal amount of Underlying Debt Securities that may be
purchased upon exercise of each such Debt Warrant, and the price, or the
manner of determining the price, at which such principal amount may be
purchased upon such exercise.
(4) The time or times at which, or period or periods in which, such Debt
Warrants may be exercised and the expiration date of such Debt Warrants.
(5) The terms of any right of the Company to redeem such Debt Warrants.
(6) Whether certificates evidencing such Debt Warrants ("Debt Warrant
Certificates") will be issued in registered or bearer form, and, if
registered, where they may be transferred and exchanged.
(7) Whether such Debt Warrants are to be issued with any Debt Securities
or any other Securities.
(8) The date, if any, on and after which such Debt Warrants and such
Debt Securities or other Securities will be separately transferable.
(9) Any other terms of such Debt Warrants.
If applicable, the prospectus supplement will also set forth information
concerning any other Securities offered thereby and a discussion of federal
income tax considerations relevant thereto.
Debt Warrant Certificates will be exchangeable for new Debt Warrant
Certificates of different denominations. No service charge will be made for any
permitted transfer or exchange of Debt Warrant Certificates, but the Company may
require payment of any tax or other governmental charge payable in connection
therewith. Debt Warrants may be exercised and exchanged, and Debt Warrants in
registered form may be presented for registration of transfer at the corporate
trust office of the Debt Warrant Agent or any other office indicated in the
prospectus supplement.
EXERCISE OF DEBT WARRANTS
Each Offered Debt Warrant will entitle the holder thereof to purchase such
amount of Underlying Debt Securities at the exercise price set forth in, or
calculable from, the prospectus supplement relating to such Offered Debt
Warrants. After the close of business on the applicable expiration date,
unexercised Debt Warrants will become void.
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Debt Warrants may be exercised by payment to the Debt Warrant Agent of the
applicable exercise price and by delivery to the Debt Warrant Agent of the
related Debt Warrant Certificate, with the reverse side thereof properly
completed. Debt Warrants will be deemed to have been exercised upon receipt of
the exercise price, subject to the receipt by the Debt Warrant Agent, within
five business days thereafter, of the Debt Warrant Certificate or Certificates
evidencing such Debt Warrants. Upon receipt of such payment and the properly
completed Debt Warrant Certificates at the corporate trust office of the Debt
Warrant Agent or any other office indicated in the prospectus supplement, the
Company will, as soon as practicable, deliver the amount of Underlying Debt
Securities purchased upon such exercise. If fewer than all of the Debt Warrants
represented by any Debt Warrant Certificate are exercised, a new Debt Warrant
Certificate will be issued for the unexercised Debt Warrants. The holder of a
Debt Warrant will be required to pay any tax or other governmental charge that
may be imposed in connection with any transfer involved in the issuance of
Underlying Debt Securities purchased upon such exercise.
MODIFICATIONS
The Debt Warrant Agreement and the terms of the Offered Debt Warrants may be
modified or amended by the Company and the Debt Warrant Agent, without the
consent of any holder, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent provision contained
therein, or in any other manner that the Company deems necessary or desirable
and that will not materially and adversely affect the interests of the holders
of the Offered Debt Warrants.
The Company and the Debt Warrant Agent may also modify or amend the Debt
Warrant Agreement and the terms of the Offered Debt Warrants with the consent of
the holders of not less than a majority in number of the then outstanding
unexercised Debt Warrants affected thereby; provided that no such modification
or amendment that accelerates the expiration date, increases the exercise price,
reduces the number of outstanding Debt Warrants the consent of the holders of
which is required for any such modification or amendment, or otherwise
materially and adversely affects the rights of the holders of the Debt Warrants,
may be made without the consent of each holder affected thereby.
NO RIGHTS AS HOLDERS OF UNDERLYING DEBT SECURITIES
Holders of Debt Warrants are not entitled, by virtue of being such holders,
to payments of principal of (or premium, if any) or interest, if any, on the
related Underlying Debt Securities or to exercise any other rights whatsoever as
holders of the Underlying Debt Securities.
DESCRIPTION OF PREFERRED STOCK
The Company may issue (either separately or together with other Offered
Securities) shares of its Preferred Stock. Under its Restated Certificate of
Incorporation (the "Certificate of Incorporation"), the Company is authorized to
adopt resolutions providing for the issuance, in one or more series, of up to
3,000,000 shares of its Preferred Stock, with such powers, preferences and
relative, participating, optional or other special rights and qualifications,
limitations or restrictions thereof as shall be adopted by the Board of
Directors or a duly authorized committee thereof. The following summary of
certain provisions of the Preferred Stock does not purport to be complete and is
subject to, and qualified in its entirety by reference to, the Certificate of
Incorporation and the Certificate of Designations relating to the subject
Preferred Stock.
The specific terms of (i) any Preferred Stock proposed to be sold pursuant
to this prospectus and the accompanying prospectus supplement (the "Offered
Preferred Stock") and (ii) any Preferred Stock to be represented by Depositary
Shares or issuable upon the conversion or exchange of other Offered Securities
(the "Underlying Preferred Stock") will be described in such prospectus
supplement.
If so indicated in the prospectus supplement, the terms of the Offered
Preferred Stock or Underlying Preferred Stock may differ from the terms set
forth below, except those terms required by the Certificate of Incorporation.
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GENERAL
Under the Certificate of Incorporation, each series of Preferred Stock of
the Company will rank on a parity as to dividends and distributions of assets
upon liquidation with every other series of Preferred Stock of the Company. The
Offered and Underlying Preferred Stock will, when issued, be fully paid and non-
assessable and holders thereof will have no preemptive rights.
Reference is made to the prospectus supplement for the terms of the Offered
Preferred Stock, the Underlying Preferred Stock or both, as the case may be,
including:
(1) The title and stated value of such Preferred Stock.
(2) The number of shares of such Preferred Stock offered, the
liquidation preference per share and the offering price of such Preferred
Stock.
(3) The dividend rate(s), period(s) and/or payment date(s) or method(s)
of calculation thereof applicable to such Preferred Stock.
(4) The date from which dividends on such Preferred Stock shall
accumulate, if applicable.
(5) The liquidation preference of such Preferred Stock.
(6) The procedures for any auction and remarketing, if any, of such
Preferred Stock.
(7) The provision for a sinking fund, if any, for such Preferred Stock.
(8) The provision for redemption, if applicable, of such Preferred
Stock.
(9) Whether interests in such Preferred Stock will be represented by
Depositary Shares.
(10) Whether such Preferred Stock will be convertible into or
exchangeable for shares of Common Stock or other Securities and, if so, the
terms and conditions upon which such Preferred Stock will be so convertible
or exchangeable, including the conversion price or exchange ratio and the
conversion or exchange period (or the method of determining the same).
(11) Whether such Preferred Stock will be listed on any securities
exchange.
(12) Whether such Preferred Stock will be issued with any other
Securities.
(13) Any other specific terms, preferences or rights of, or limitations
or restrictions on, such Preferred Stock.
Subject to the Certificate of Incorporation and to any limitations contained
in outstanding Preferred Stock, the Company may issue additional series of
Preferred Stock, at any time or from time to time, with such powers, preferences
and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, as the Board of Directors
or any duly authorized committee thereof may determine, all without further
action of the stockholders, including holders of then outstanding Preferred
Stock, of the Company.
If applicable, the prospectus supplement will also set forth information
concerning any other Securities offered thereby and a discussion of federal
income tax considerations relevant thereto.
DIVIDENDS
Holders of Preferred Stock will be entitled to receive cash dividends, when,
as and if declared by the Board of Directors, out of assets of the Company
legally available for payment, at such rate and on such dates as will be set
forth in the prospectus supplement. Each dividend will be payable to holders of
record as they appear on the stock books of the Company on the record date fixed
by the Board of Directors. Dividends, if cumulative, will be cumulative from and
after the date set forth in the prospectus supplement.
The Company may not (i) declare or pay dividends (except in stock of the
Company junior as to dividend or liquidation rights to the Preferred Stock (the
"Junior Stock")) or make any other distributions on any Junior Stock, or (ii)
purchase, redeem or otherwise acquire Junior Stock or set aside funds for such
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purpose (except (A) in a reclassification or exchange of Junior Stock through
the issuance of other Junior Stock or (B) with the proceeds of a reasonably
contemporaneous sale of Junior Stock), if there are arrearages in dividends or
failure in the payment of the Company's sinking fund or redemption obligations
on any of its Preferred Stock and, in the case of (i) above, if dividends in
full for the current quarterly dividend period have not been paid or declared on
any of its Preferred Stock.
Dividends in full may not be declared or paid or set apart for payment on
any series of Preferred Stock unless (i) there are no arrearages in dividends
for any past quarterly dividend periods on any series of Preferred Stock and
(ii) to the extent that such dividends are cumulative, dividends in full for the
current quarterly dividend period have been declared or paid on all Preferred
Stock. Any dividends declared or paid when dividends are not so declared, paid
or set apart in full will be shared ratably by the holders of all series of
Preferred Stock in proportion to such respective arrearages and undeclared and
unpaid current quarterly cumulative dividends. No interest, or sum of money in
lieu of interest, will be payable in respect of any dividend payment or payments
that may be in arrears.
CONVERSION AND EXCHANGE
If the Offered Preferred Stock or Underlying Preferred Stock will be
convertible into or exchangeable for Common Stock or other Securities, the
prospectus supplement will set forth the terms and conditions of such conversion
or exchange, including the conversion price or exchange ratio (or the method of
calculating the same), the conversion or exchange period (or the method of
determining the same), whether conversion or exchange will be mandatory or at
the option of the holder or the Company, the events requiring an adjustment of
the conversion price or the exchange ratio and provisions affecting conversion
or exchange in the event of the redemption of such Preferred Stock. Such terms
may also include provisions under which the number of shares of Common Stock or
the number or amount of other Securities to be received by the holders of such
Preferred Stock upon such conversion or exchange would be calculated according
to the market price of the Common Stock or such other Securities as of a time
stated in such prospectus supplement.
LIQUIDATION RIGHTS
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of each series of the Preferred Stock
will be entitled to receive out of assets of the Company available for
distribution to stockholders, before any distribution of assets is made to
holders of any Junior Stock, liquidating distributions in the amount set forth
in the prospectus supplement plus all accrued and unpaid dividends. If, upon any
voluntary or involuntary liquidation, dissolution or winding up of the Company,
the amounts payable with respect to the Preferred Stock are not paid in full,
the holders of Preferred Stock of each series will share ratably in any such
distribution of assets of the Company in proportion to the full respective
preferential amounts to which they are entitled. After payment of the full
amount of the liquidating distribution to which they are entitled, the holders
of the Preferred Stock will not be entitled to any further participation in any
distribution of assets by the Company. A consolidation or merger of the Company
with or into any other corporation or corporations or a sale of all or
substantially all of the assets of the Company will not be deemed to be a
liquidation, dissolution or winding up of the Company.
REDEMPTION
If so provided in the prospectus supplement, the Offered Preferred Stock or
Underlying Preferred Stock will be redeemable in whole or in part at the option
of the Company, at the times and at the redemption prices set forth therein.
If dividends on any series of Preferred Stock are in arrears or the Company
has failed to fulfill its sinking fund or redemption obligations with respect to
any series of Preferred Stock, the Company may not purchase or redeem any shares
of Preferred Stock or any other capital stock ranking on a parity with the
Preferred Stock as to dividends or upon liquidation, nor permit any subsidiary
to do so, without in either case the consent of the holders of at least
two-thirds of all shares of Preferred Stock then outstanding; provided, however,
that (1) to meet its purchase, retirement or sinking fund obligations with
respect to any series of Preferred Stock, the Company may use shares of such
Preferred Stock acquired prior to such arrearages or
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failure of payment and then held as treasury stock and (2) the Company may
complete the purchase or redemption of shares of Preferred Stock for which a
contract was entered into for any purchase, retirement or sinking fund purposes
prior to such arrearages or failure of payment.
VOTING RIGHTS
Except as indicated below or in the prospectus supplement, or except as
expressly required by applicable law, the holders of the Preferred Stock will
not be entitled to vote. As used herein, the term "Applicable Preferred Stock"
means those series of Preferred Stock to which the provisions described herein
are expressly made applicable by resolutions of the Board of Directors of the
Company.
If the equivalent of six quarterly dividends payable on any share of any
series of Applicable Preferred Stock are in default (whether or not such
dividends have been declared or such defaulted dividends are consecutive), the
number of directors of the Company will be increased by two and the holders of
all outstanding series of Applicable Preferred Stock (whether or not dividends
thereon are in default), voting as a single class without regard to series, will
be entitled to elect the two additional directors until four consecutive
quarterly dividends are paid or declared and set apart for payment, if such
share is non-cumulative, or until all arrearages in dividends and dividends in
full for the current quarterly period are paid or declared and set apart for
payment, if such share is cumulative, whereupon all voting rights described
herein shall be divested from the Applicable Preferred Stock. The holders of
Applicable Preferred Stock may exercise their special class voting rights at
meetings of the stockholders for the election of directors or at special
meetings for the purpose of electing such directors, in either case at which the
holders of not less than one-third of the aggregate number of shares of
Applicable Preferred Stock are present in person or by proxy.
The affirmative vote of the holders of at least two-thirds of the
outstanding shares of Preferred Stock will be required (i) for any amendment of
the Certificate of Incorporation that will adversely affect the powers,
preferences or rights of the holders of the Preferred Stock or (ii) to create
any class of stock (or increase the authorized number of shares of any class of
stock) that will have preference as to dividends or upon liquidation over the
Preferred Stock or create any stock or other security convertible into or
exchangeable for or evidencing the right to purchase any such stock. The
affirmative vote of the holders of at least two-thirds of the outstanding shares
of Preferred Stock of a series will be required for any amendment of the
Certificate of Incorporation (or the related Certificate of Designations) that
will adversely affect the powers, preferences or rights of Preferred Stock of
such series.
The affirmative vote of the holders of a majority of then outstanding shares
of Preferred Stock will be required to (i) increase the authorized amount of the
Preferred Stock or (ii) create any class of stock (or increase the authorized
number of shares of any class of stock) that will rank on a parity with the
Preferred Stock either as to dividends or upon liquidation, or create any stock
or other security convertible into or exchangeable for or evidencing the right
to purchase any such stock.
DESCRIPTION OF DEPOSITARY SHARES
The Company may offer (either separately or together with other Offered
Securities) Depositary Shares representing interests in shares of its Preferred
Stock of one or more series. Reference is made to the prospectus supplement for
a description of the deposit agreements (each a "Deposit Agreement") to be
entered into between the Company and a bank or trust company, as depositary (the
"Preferred Stock Depositary"). A copy of the form of Deposit Agreement,
including the form of depositary receipts evidencing Depositary Shares (the
"Depositary Receipts"), has been filed as an exhibit to the registration
statement. The following summary of certain provisions of the Depositary Shares
does not purport to be complete and is subject to, and qualified in its entirety
by reference to, the Deposit Agreement and the Deposit Receipts, including the
definitions of certain terms.
The specific terms of any Depositary Shares proposed to be sold pursuant to
this prospectus and the accompanying prospectus supplement (the "Offered
Depositary Shares") will be described in such prospectus supplement. If so
indicated in the prospectus supplement, the terms of the Depositary Shares may
differ from the terms set forth below.
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GENERAL
The Company will provide for the issuance by the Preferred Stock Depositary
to the public of the Depositary Receipts evidencing the Depositary Shares, each
of which will represent a fractional interest (to be specified in the prospectus
supplement) in one share of the related Preferred Stock, as described below.
Reference is made to the prospectus supplement for the terms of the Offered
Depositary Shares, including:
(1) The terms of the series of Preferred Stock deposited by the Company
under the Deposit Agreement.
(2) The number of such Depositary Shares and the fraction of one share of
such Preferred Stock represented by one such Depositary Share.
(3) Whether such Depositary Shares will be listed on any securities
exchange.
(4) Whether such Depositary Shares will be sold with any other Offered
Securities and, if so, the amount and terms thereof.
(5) Any other terms of such Depositary Shares.
If applicable, the prospectus supplement will also set forth information
concerning any other Securities offered thereby and a discussion of federal
income tax considerations relevant thereto.
Depositary Receipts will be exchangeable for new Depositary Receipts of
different denominations. No service charge will be made for any permitted
transfer or exchange of Depositary Receipts, but the Company may require payment
of any tax or other governmental charge payable in connection therewith. Subject
to the terms of the Deposit Agreement, each owner of a Depositary Share will be
entitled, in proportion to the applicable fractional interest in a share of
Preferred Stock of such series represented by such Depositary Share, to all
rights and preferences of the Preferred Stock represented by such Depositary
Share (including dividend, voting and liquidation rights and any redemption,
conversion or exchange rights).
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depositary will distribute all cash dividends and other
cash distributions received in respect of the related series of Preferred Stock
to the record holders of the Depositary Shares in proportion to the number of
such Depositary Shares owned by such holders on the relevant record date. The
Preferred Stock Depositary will distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributed will be added to and treated as
part of the next sum, if any, received by the Preferred Stock Depositary for
distribution to record holders of Depositary Shares.
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Shares entitled thereto, unless the Preferred Stock Depositary
determines that it is not feasible to make such distribution, in which case the
Preferred Stock Depositary may, with the approval of the Company, sell such
property and distribute the net proceeds from such sale to such holders.
The Deposit Agreement will also contain provisions relating to the manner in
which any subscription or similar rights offered by the Company to holders of
the related series of Preferred Stock will be made available to holders of
Depositary Shares.
WITHDRAWAL OF PREFERRED STOCK
Upon surrender of Depositary Receipts at the corporate trust office of the
Preferred Stock Depositary (unless the related shares of Preferred Stock have
previously been called for redemption), the holder of the Depositary Shares
evidenced thereby will be entitled to receive at such office, to or upon such
holder's order, the number of whole shares of the related series of Preferred
Stock and any money or other property represented by such Depositary Shares.
Shares of Preferred Stock so withdrawn, however, may not be redeposited. If the
holder requests withdrawal of less than all the shares of Preferred Stock to
which such holder is entitled, or if such holder would otherwise be entitled to
a fractional share of Preferred Stock, the Preferred Stock Depositary will
deliver to such holder a new Depositary Receipt evidencing such balance or
fractional share.
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REDEMPTION OF DEPOSITARY SHARES
Whenever the Company redeems Preferred Stock held by the Preferred Stock
Depositary, the Preferred Stock Depositary will redeem as of the same redemption
date the number of Depositary Shares representing the Preferred Stock so
redeemed; provided that the Company has paid in full to the Preferred Stock
Depositary the redemption price of such Preferred Stock plus an amount equal to
any accrued and unpaid dividends thereon to the date fixed for redemption. The
redemption price per Depositary Share will be equal to the applicable fraction
of the redemption price per share and accrued and unpaid dividends payable with
respect to such Preferred Stock. If less than all the Depositary Shares are to
be redeemed, the Depositary Shares to be redeemed will be selected by lot or pro
rata or by another equitable method, in each case as may be determined by the
Company.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of such Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which the
holders of such Depositary Shares were entitled upon such redemption and
surrender to the Preferred Stock Depositary of the Depositary Receipts
evidencing such Depositary Shares.
CONVERSION AND EXCHANGE
Depositary Shares, as such, are not convertible into or exchangeable for
Common Stock or other Securities. Nevertheless, if the Preferred Stock
represented by Depositary Shares is convertible into or exchangeable for Common
Stock or other Securities, the Depositary Receipts evidencing such Depositary
Shares may be surrendered by the holder thereof to the Preferred Stock
Depositary with written instructions to convert or exchange such Preferred Stock
into whole shares of Common Stock or other Securities, as specified in the
related prospectus supplement. The Company, upon receipt of such instructions
and any amounts payable in respect thereof, will cause the conversion or
exchange thereof and will deliver to the holder such whole shares of Common
Stock or such whole number of other Securities (and cash in lieu of any
fractional share or Security). In the case of a partial conversion or exchange,
the holder will receive a new Depositary Receipt evidencing the unconverted or
unexchanged balance.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which holders of one or more series
of Preferred Stock are entitled to vote, the Preferred Stock Depositary will
mail the information contained in such notice of meeting to the holders of the
Depositary Shares relating to such Preferred Stock. Each record holder of such
Depositary Shares on the record date for such meeting will be entitled to
instruct the Preferred Stock Depositary as to the manner in which to vote the
number of shares of Preferred Stock represented by such Depositary Shares. The
Company will agree to take all reasonable action that may be deemed necessary by
the Preferred Stock Depositary in order to enable the Preferred Stock Depositary
to vote in accordance with each holder's instructions. The Preferred Stock
Depositary will abstain from voting Preferred Stock to the extent it does not
receive instructions from the holders of Depositary Shares representing such
Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Preferred Stock Depositary. However, any amendment
that materially and adversely alters the rights of the holders of Depositary
Shares will not be effective unless such amendment has been approved by the
holders of at least a majority of the Depositary Shares then outstanding (or
such greater amount as may be required by the rules of any exchange on which the
Depositary Shares are listed); provided that any amendment that prejudices any
substantial right of the holders of Depositary Shares will not become effective
until the expiration of 90 days after notice of such amendment has been given to
such holders. A holder that continues to hold one or more Depositary Receipts at
the expiration of such 90-day period will be deemed to consent to, and will be
bound by, such amendment. No amendment may impair the right of any holder to
surrender such holder's Depositary Receipt and receive the related Preferred
Stock, as discussed above under "Withdrawal of Preferred Stock".
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The Deposit Agreement may be terminated by the Company at any time upon not
less than 60 days prior written notice to the Preferred Stock Depositary. In any
such case, the Preferred Stock Depositary will deliver to each holder of
Depositary Shares, upon surrender of the related Depositary Receipts, the number
of whole shares of the related series of Preferred Stock to which such holder is
entitled, together with cash in lieu of any fractional share. The Deposit
Agreement will terminate automatically after all the related Preferred Stock has
been redeemed, withdrawn, converted or exchanged or there has been a final
distribution in respect of the Preferred Stock represented by such Depositary
Shares in connection with any liquidation, dissolution or winding up of the
Company.
CHARGES OF PREFERRED STOCK DEPOSITARY
Except as provided in the prospectus supplement, the Company will pay the
fees and expenses of the Preferred Stock Depositary, and the holders of
Depositary Receipts will be required to pay any tax or other governmental charge
that may be imposed in connection with the transfer, exercise, surrender or
split-up of Depositary Receipts.
MISCELLANEOUS
The Preferred Stock Depositary will forward to the holders of Depositary
Shares all reports and communications from the Company that are delivered to the
Preferred Stock Depositary and that the Company is required to furnish to the
holders of the Preferred Stock. Neither the Preferred Stock Depositary nor the
Company will be liable if it is prevented or delayed by law or any circumstance
beyond its control in performing its obligations under the Deposit Agreement.
The obligations of the Company and the Preferred Stock Depositary under the
Deposit Agreement will be limited to performance in good faith and without gross
negligence of their respective duties thereunder, and neither entity will be
obligated to prosecute or defend any legal proceeding in respect of any
Depositary Shares or related shares of Preferred Stock unless satisfactory
indemnity is furnished.
RESIGNATION AND REMOVAL OF PREFERRED STOCK DEPOSITARY
The Preferred Stock Depositary may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at any time remove
the Preferred Stock Depositary, any such resignation or removal to take effect
upon the appointment of a successor Preferred Stock Depositary. Such successor
Preferred Stock Depositary must be appointed within 60 days after delivery of a
notice of resignation or removal and must be a bank or trust company having its
principal office in the United States and having a combined capital and surplus
of at least $50,000,000.
DESCRIPTION OF COMMON STOCK
The Company may issue (either separately or together with other Offered
Securities) shares of its Common Stock. Under the Certificate of Incorporation,
the Company is authorized to issue up to 200,000,000 shares of its Common Stock.
Reference is made to the prospectus supplement relating to Offered Common Stock,
or Offered Securities convertible or exchangeble for, or exercisable into Common
Stock for the terms relevant thereto, including the number of shares offered,
any initial offering price, and market price and dividend information, as well
as, if applicable, information on such other Offered Securities. See
"Description of Outstanding Capital Stock" below.
DESCRIPTION OF COMMON WARRANTS
The Company may issue (either separately or together with other Offered
Securities) Common Warrants to purchase Common Stock (the "Offered Common
Warrants"). The Common Warrants will be issued under warrant agreements (each a
"Common Warrant Agreement") to be entered into between the Company and a bank or
trust company, as warrant agent (the "Common Warrant Agent"). The form of Common
Warrant Agreement has been filed as an exhibit to the registration statement.
The following summary of certain provisions of the Common Warrant Agreement does
not purport to be complete and is subject to, and qualified in its entirety by
reference to the Common Warrant Agreement, including the definitions of certain
terms.
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GENERAL
Reference is made to the prospectus supplement for the terms of the Offered
Common Warrants, including:
(1) The title and aggregate number of such Common Warrants.
(2) The number of shares of Common Stock that may be purchased upon
exercise of each such Common Warrant; the price, or the manner of
determining the price, at which such shares may be purchased upon such
exercise; if other than cash, the property and manner in which the exercise
price may be paid; and any minimum number of such Common Warrants that are
exercisable at any one time.
(3) The time or times at which, or period or periods in which, such
Common Warrants may be exercised and the expiration date of such Common
Warrants.
(4) The terms of any right of the Company to redeem such Common
Warrants.
(5) The terms of any right of the Company to accelerate the exercise of
such Common Warrants upon the occurrence of certain events.
(6) Whether such Common Warrants will be sold with any other Offered
Securities.
(7) The date, if any, on and after which such Common Warrants and such
Offered Securities will be separately transferable.
(8) Any other terms of such Common Warrants.
If applicable, the prospectus supplement will also set forth information
concerning any other Securities offered thereby and a discussion of federal
income tax considerations relevant thereto.
Certificates representing Common Warrants (the "Common Warrant
Certificates") will be exchangeable for new Common Warrant Certificates of
different denominations. No service charge will be made for any permitted
transfer or exchange of Common Warrant Certificates, but the Company may require
payment of any tax or other governmental charge payable in connection therewith.
Common Warrants may be exercised at the corporate trust office of the Common
Warrant Agent or any other office indicated in the prospectus supplement.
EXERCISE OF COMMON WARRANTS
Each Offered Common Warrant will entitle the holder thereof to purchase such
number of shares of Common Stock at the exercise price set forth in, or
calculable from, the prospectus supplement relating to such Offered Common
Warrants. After the close of business on the applicable expiration date,
unexercised Common Warrants will become void.
Offered Common Warrants may be exercised by payment to the Common Warrant
Agent of the exercise price and by delivery to the Common Warrant Agent of the
related Common Warrant Certificate, with the reverse side thereof properly
completed. Offered Common Warrants will be deemed to have been exercised upon
receipt of the exercise price, subject to the receipt by the Common Warrant
Agent, within five business days thereafter, of the Common Warrant Certificate
or Certificates evidencing such Offered Common Warrants. Upon receipt of such
payment and the properly completed Common Warrant Certificates at the corporate
trust office of the Common Warrant Agent or such other office acceptable to the
Common Warrant Agent, the Company will, as soon as practicable, deliver the
shares of Common Stock purchased upon such exercise. If fewer than all of the
Offered Common Warrants represented by any Common Warrant Certificate are
exercised, a new Common Warrant Certificate will be issued for the unexercised
Offered Common Warrants. The holder of an Offered Common Warrant will be
required to pay any tax or other governmental charge that may be imposed in
connection with any transfer involved in the issuance of Common Stock purchased
upon such exercise.
MODIFICATIONS
The Common Warrant Agreement and the terms of the Offered Common Warrants
may be modified or amended by the Company and the Common Warrant Agent, without
the consent of any holder, for the
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purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective or inconsistent provision contained therein, or in any other manner
that the Company deems necessary or desirable and that will not materially and
adversely affect the interests of the holders of the Offered Common Warrants.
The Company and the Common Warrant Agent may also modify or amend the Common
Warrant Agreement and the terms of the Offered Common Warrants with the consent
of the holders of not less than a majority in number of the then outstanding
unexercised Common Warrants affected thereby; provided that no such modification
or amendment that accelerates the expiration date, increases the exercise price,
reduces the number of consents required for any modification or amendment, or
otherwise materially and adversely affects the rights of the holders of the
Common Warrants, may be made without the consent of each holder affected
thereby.
COMMON WARRANT ADJUSTMENTS
The terms and conditions on which the exercise price of and/or the number of
shares of Common Stock covered by an Offered Common Warrant are subject to
adjustment will be set forth in the Common Warrant Agreement and the prospectus
supplement. Such terms will include provisions for adjusting the exercise price
and/or the number of shares of Common Stock covered by such Offered Common
Warrant; the events requiring such adjustment; the events upon which the Company
may, in lieu of making such adjustment, make proper provisions so that the
holder of such Offered Common Warrant, upon exercise thereof, would be treated
as if such holder had exercised such Offered Common Warrant prior to the
occurrence of such events; and provisions affecting exercise in the event of
certain events affecting the Common Stock.
NO RIGHTS AS STOCKHOLDERS
Holders of Common Warrants are not entitled, by virtue of being such
holders, to vote, consent or receive notice as stockholders of the Company in
respect of any meeting of stockholders for the election of directors of the
Company or any other matter, or exercise any other rights whatsoever as
stockholders of the Company.
DESCRIPTION OF CURRENCY WARRANTS
The Company may issue (either separately or together with other Offered
Securities) Currency Warrants (the "Offered Currency Warrants"). The Offered
Currency Warrants may be issued (a) in the form of Currency Put Warrants,
entitling the owners thereof to receive from the Company the Cash Settlement
Value (as hereinafter defined) in U.S. dollars of the right to purchase a
designated amount of U.S. dollars for a designated amount of a specified foreign
Currency (a "Base Currency"), (b) in the form of Currency Call Warrants,
entitling the owners thereof to receive from the Company the Cash Settlement
Value in U.S. dollars of the right to sell a designated amount of U.S. dollars
for a designated amount of a Base Currency or (c) in such other form as shall be
specified in the applicable prospectus supplement. A Currency Warrant will not
require or entitle the owners to sell, deliver, purchase or take delivery of any
Base Currency. The Currency Warrants will be issued under warrant agreements
(each a "Currency Warrant Agreement") to be entered into between the Company and
a bank or trust company, as warrant agent (the "Currency Warrant Agent"), to be
set forth in the prospectus supplement relating to the Offered Currency
Warrants. The form of Currency Warrant Agreement, has been filed as an exhibit
to the registration statement. The following summary of certain provisions of
the Currency Warrant Agreement does not purport to be complete and is subject
to, and qualified in its entirety by reference to, all the provisions of the
Currency Warrant Agreement and the Currency Warrant Certificates, respectively,
including the definitions of certain terms.
GENERAL
Reference is made to the prospectus supplement for the terms of Offered
Currency Warrants, including:
(1) The title and aggregate number of such Currency Warrants.
(2) The material risk factors relating to such Currency Warrants.
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(3) Whether such Currency Warrants shall be Currency Put Warrants,
Currency Call Warrants, both puts and calls or otherwise.
(4) The formula for determining the Cash Settlement Value, if
applicable, of each such Currency Warrant.
(5) The procedures and conditions relating to the exercise of such
Currency Warrants.
(6) The date on which the right to exercise such Currency Warrants will
commence and the date (the "Currency Warrant Expiration Date") on which such
right will expire.
(7) The circumstances, in addition to their automatic exercise upon the
Currency Warrant Expiration Date, that will cause such Currency Warrants to
be deemed to be automatically exercised.
(8) Any minimum number of such Currency Warrants that must be exercised
at any one time, other than upon automatic exercise.
(9) Whether such Currency Warrants are to be issued with any other
Offered Securities.
(10) Any other terms of such Currency Warrants.
If applicable, the prospectus supplement will also set forth information
concerning any other Securities offered thereby and a discussion of federal
income tax considerations relevant thereto.
If Currency Warrants are to be offered either in the form of Currency Put
Warrants or Currency Call Warrants, an owner will receive a cash payment upon
exercise only if the Currency Warrants have a Cash Settlement Value in excess of
zero at that time. The spot exchange rate of the applicable Base Currency, as
compared to the U.S. dollar upon exercise, will determine whether the Currency
Warrants have a Cash Settlement Value on any given day prior to their
expiration. The Currency Warrants are expected to be "out-of-the-money" (I.E.,
the Cash Settlement Value will be zero) when initially sold and will be
"in-the-money" (I.E., their Cash Settlement Value will exceed zero) if, in the
case of Currency Put Warrants, the Base Currency depreciates against the U.S.
dollar to the extent that one U.S. dollar is worth more than the price
determined for the Base Currency in the prospectus supplement (the "Strike
Price") or, in the case of Currency Call Warrants, the Base Currency appreciates
against the U.S. dollar to the extent one U.S. dollar is worth less than the
Strike Price. "Cash Settlement Value" on an Exercise Date (as such term will be
defined in the prospectus supplement) is an amount that is the greater of (i)
zero and (ii) the amount computed, in the case of Currency Put Warrants, by
subtracting from a constant or, in the case of Currency Call Warrants, by
subtracting such constant from, an amount equal to such a constant multiplied by
a fraction, the numerator of which is the Strike Price and the denominator of
which is the spot exchange rate of the Base Currency for U.S. dollars on the
Exercise Date (the "Spot Rate") as such Spot Rate is determined pursuant to the
Currency Warrant Agreement. Information concerning the historical exchange rates
for the Base Currency will be included in the prospectus supplement.
There will be a time lag between the time that an owner of Currency Warrants
gives instructions to exercise such Currency Warrants and the time that the Spot
Rate relating to such exercise is determined, as described in the prospectus
supplement.
Currency Warrants will be unsecured contractual obligations of the Company
and will rank on a parity with the Company's other unsecured contractual
obligations and with the Company's unsecured and unsubordinated debt.
BOOK-ENTRY PROCEDURES AND SETTLEMENT
Unless otherwise provided in the prospectus supplement, each issue of
Currency Warrants will be issued in book-entry form and represented by a single
global Currency Warrant Certificate, registered in the name of a depository or
its nominees. Owners will generally not be entitled to receive definitive
certificates representing Currency Warrants. An owner's ownership of a Currency
Warrant will be recorded on or through the records of the brokerage firm or
other entity that maintains such owner's account. In turn, the total number of
Currency Warrants held by an individual brokerage firm for its clients will be
maintained on
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the records of the depository in the name of such brokerage firm or its agent.
Transfer of ownership of any Currency Warrant will be effected only through the
selling owner's brokerage firm. Neither the Company nor the Currency Warrant
Agent will have any responsibility or liability for any aspect of the records
relating to beneficial ownership interests of global Currency Warrant
Certificates or for maintaining, supervising or reviewing records relating to
such beneficial ownership interests.
The Cash Settlement Value on exercise of a Currency Warrant will be paid by
the Currency Warrant Agent to the depository. The depository will be responsible
for crediting the amount of such payments to the accounts of the participants in
accordance with its standard procedures. Each participant will be responsible
for disbursing such payments to the beneficial owners of the Currency Warrants
that it represents and to each brokerage firm for which it acts as agent. Each
such brokerage firm will be responsible for disbursing funds to the owners of
the Currency Warrants that it represents.
If the depository is at any time unwilling or unable to continue as
depository and a successor depository is not appointed by the Company within 90
days, the Company will issue Currency Warrants in definitive form in exchange
for the global Currency Warrant. In addition, the Company may at any time
determine not to have the Currency Warrants represented by a global Currency
Warrant and, in such event, will issue Currency Warrants in definitive form in
exchange for the global Currency Warrant. In either instance, an owner of a
beneficial interest in the global Currency Warrant will be entitled to have a
number of Currency Warrants equivalent to such beneficial interest registered in
its name and will be entitled to physical delivery of such Currency Warrants in
definitive form.
EXERCISE OF CURRENCY WARRANTS
Unless otherwise provided in the prospectus supplement, each Currency
Warrant will entitle the owner to the Cash Settlement Value of such Currency
Warrant on the applicable Exercise Date. If not exercised prior to a specified
time on the fifth business day preceding the Currency Warrant Expiration Date,
Currency Warrants will be automatically exercised on the Currency Warrant
Expiration Date.
LISTING
Each issue of Currency Warrants will be listed on a national securities
exchange, subject only to official notice of issuance, as a pre-condition to the
sale of any such Currency Warrants, unless otherwise provided in the prospectus
supplement. In the event that the Currency Warrants are delisted from, or
permanently suspended from trading on, such exchange, Currency Warrants not
previously exercised will be automatically exercised on the date such delisting
or permanent trading suspension becomes effective. The applicable Currency
Warrant Agreement will contain a covenant of the Company not to seek delisting
of the Currency Warrants from, or permanent suspension of their trading on, such
exchange.
MODIFICATIONS
The Currency Warrant Agreement and the terms of the Currency Warrants may be
amended by the Company and the Currency Warrant Agent, without the consent of
the owners or the registered holder, for the purpose of curing any ambiguity, or
of curing, correcting or supplementing any defective or inconsistent provision
contained therein, or in any other manner which the Company may deem necessary
or desirable and which will not materially and adversely affect the interests of
the owners.
The Company and the Currency Warrant Agent also may modify or amend the
Currency Warrant Agreement and the terms of the Currency Warrants with the
consent of the beneficial owners of not less than a majority in number of the
then outstanding unexercised Currency Warrants affected, provided that no such
modification or amendment that increases the Strike Price in the case of a
Currency Put Warrant, decreases the Strike Price in the case of a Currency Call
Warrant, shortens the period of time during which the Currency Warrants may be
exercised or otherwise materially and adversely affects the exercise rights of
the owners of the Currency Warrants or reduces the number of outstanding
Currency Warrants the consent of whose owners is required for modification or
amendment of the Currency Warrant Agreement or the terms of the Currency
Warrants may be made without the consent of each owner affected thereby.
31
<PAGE>
ENFORCEABILITY OF RIGHTS BY OWNERS; GOVERNING LAW
The Currency Warrant Agent will act solely as an agent of the Company in
connection with the issuance and exercise of Currency Warrants and will not
assume any obligation or relationship of agency or trust for or with any owner
of a beneficial interest in Currency Warrants or with the registered holder
thereof. The Currency Warrant Agent shall have no duty or responsibility in case
of any default by the Company in the performance of its obligations under the
Currency Warrant Agreement or a Currency Warrant Certificate including, without
limitation, any duty or responsibility to initiate any proceedings at law or
otherwise or to make any demand upon the Company. Owners may, without the
consent of the Currency Warrant Agent, enforce by appropriate legal action, on
their own behalf, their right to exercise, and to receive payment for, their
Currency Warrants. Except as may otherwise be provided in the prospectus
supplement, each issue of Currency Warrants and the applicable Currency Warrant
Agreement will be governed by and construed in accordance with the law of the
State of New York.
DESCRIPTION OF INDEXED, COMMODITY AND OTHER WARRANTS
The Company may issue (either separately or together with other Offered
Securities) Shelf Warrants (the "Offered Shelf Warrants"). Subject to compliance
with applicable law, the Offered Shelf Warrants may be issued for the purchase
or sale of debt securities of, or guaranteed by, the United States, units of a
stock index or stock basket or a commodity or a unit of a commodity index
(collectively, "Exercise Items"). Shelf Warrants will be settled either through
physical delivery or through payment of a cash settlement value as set forth in
the prospectus supplement. Shelf Warrants will be issued under warrant
agreements (each, a "Shelf Warrant Agreement") to be entered into between the
Company and a bank or trust company, as warrant agent (the "Shelf Warrant
Agent"), all as set forth in the prospectus supplement relating to the Offered
Shelf Warrants. The form of Shelf Warrant Agreement, including the form of Shelf
Warrant Certificates representing the Shelf Warrants (the "Shelf Warrant
Certificates"), reflecting the alternative provisions to be included in the
Shelf Warrant Agreements that will be entered into with respect to particular
offerings of Shelf Warrants has been filed as an exhibit to the registration
statement. The following summary of certain provisions relating to the Shelf
Warrants does not purport to be complete and is subject to, and qualified in its
entirety, by reference to the Shelf Warrant Agreement and the Shelf Warrant
Certificates, respectively, including the definitions therein of certain terms.
GENERAL
Reference is made to the prospectus supplement for the terms of the Offered
Shelf Warrants, including (to the extent such terms are applicable to such Shelf
Warrants):
(1) The title and aggregate number of such Shelf Warrants.
(2) The material risk factors relating to such Shelf Warrants.
(3) The Exercise Items that such Shelf Warrants represent the right to
buy or sell.
(4) The procedures and conditions relating to the exercise of such Shelf
Warrants.
(5) The date on which the right to exercise such Shelf Warrants shall
commence and the date on which such right shall expire.
(6) The national securities exchange on which such Shelf Warrants will
be listed, if any.
(7) Any other material terms of such Shelf Warrants.
If applicable, the prospectus supplement will also set forth information
concerning any other Securities offered thereby and a discussion of federal
income tax considerations relevant thereto.
If the Shelf Warrants relate to the purchase or sale of debt securities of,
or guaranteed by, the United States, it is currently expected that such Shelf
Warrants will be listed on a national securities exchange. The prospectus
supplement relating to such Shelf Warrants will describe the amount and
designation of such debt securities covered by each Shelf Warrant, whether such
Shelf Warrants provide for cash settlement or delivery of such debt securities
upon exercise and the national securities exchange, if any, on which the Shelf
Warrants will be listed.
32
<PAGE>
If the Shelf Warrants relate to the purchase or sale of a unit of a stock
index or a stock basket, such Shelf Warrants will provide for payment of an
amount in cash determined by reference to increases or decreases in such stock
index or stock basket. It is currently expected that such Shelf Warrants will be
listed on a national securities exchange. The prospectus supplement relating to
such Shelf Warrants will describe the terms of such Shelf Warrants, the stock
index or stock basket covered by such Shelf Warrants and the market to which
such stock index or stock basket relates and the national securities exchange,
if any, on which such Shelf Warrants will be listed.
If the Shelf Warrants relate to the purchase or sale of a commodity or a
unit of a commodity index, such Shelf Warrants will provide for cash settlement
or delivery of the particular commodity or commodities. It is currently expected
that such Shelf Warrants will be listed on a national securities exchange. The
prospectus supplement relating to such Shelf Warrants will describe the terms of
such Shelf Warrants, the commodity or commodity index covered by such Shelf
Warrrants and the market, if any, to which such commodity or commodity index
relates and the national securities exchange, if any, on which such Shelf
Warrants will be listed.
Shelf Warrant Certificates may (i) be exchanged for new Shelf Warrant
Certificates of different denominations, (ii) (if in registered form) be
presented for registration of transfer, and (iii) be exercised, at the corporate
trust office of the Shelf Warrant Agent or any other office indicated in the
prospectus supplement. Shelf Warrants may be issued in the form of a single
global Shelf Warrant Certificate registered in the name of the nominee of the
depository of the Shelf Warrants, or may initially be issued in the form of
definitive certificates that may be exchanged, on a fixed date, or on a date or
dates selected by the Company, for interest in a global Shelf Warrant
Certificate, as set forth in the applicable prospectus supplement. Prior to the
exercise of their Shelf Warrants, holders thereof will not have any rights under
such Warrants (i) to purchase or sell any debt securities of, or guaranteed by,
the United States or to receive any settlement value therefor, (ii) to purchase
or sell any commodities or to receive any settlement therefor or (iii) to
receive any settlement value in respect to any unit of a commodity index or
stock index or stock basket.
EXERCISE OF SHELF WARRANTS
Each Offered Shelf Warrant will entitle the holder to purchase or sell such
amount of debt securities of, or guaranteed by, the United States at such
exercise price, or receive such settlement value in respect of a stock index,
stock basket, commodity or commodity index, as shall in each case be set forth
in, or calculable from, the prospectus supplement relating to the Shelf Warrants
or as otherwise set forth in the prospectus supplement. Shelf Warrants may be
exercised at any time on the dates set forth in the prospectus supplement
relating to such Shelf Warrants or as may be otherwise set forth in the
prospectus supplement. Unless otherwise provided in the applicable prospectus
supplement, after the close of business on the applicable expiration date (or
such later date to which such date may be extended by the Company), unexercised
Shelf Warrants will become void.
Unless otherwise provided in the prospectus supplement relating thereto,
Offered Shelf Warrants may be exercised by delivery of a properly completed
Shelf Warrant Certificate to the Shelf Warrant Agent and payment of the amount
required to purchase (except in the case of Offered Shelf Warrants providing for
cash settlement) the Exercise Items purchasable upon such exercise. Shelf
Warrants will be deemed to have been exercised upon receipt of such Shelf
Warrant Certificate and any such payment, if applicable, at the corporate trust
office of the Shelf Warrant Agent or any other office indicated in the
prospectus supplement and the Company will, as soon as practicable thereafter,
buy or sell such debt securities of, or guaranteed by, the United States or pay
the settlement value therefor. If fewer than all of the Shelf Warrants
represented by such Shelf Warrant Certificate are exercised, a new Shelf Warrant
Certificate will be issued for the remaining Shelf Warrants. The holder of an
Offered Shelf Warrant will be required to pay any tax or other governmental
charge that may be imposed.
RISK FACTORS RELATING TO THE SHELF WARRANTS
The Shelf Warrants may entail significant risks, including, without
limitation, the possibility of significant fluctuations in the market for the
applicable Exercise Item, potential illiquidity in the secondary market and the
risk that they will expire worthless. These risks will vary depending on the
particular terms of the Shelf Warrants and will be more fully described in the
prospectus supplement.
33
<PAGE>
DESCRIPTION OF OUTSTANDING CAPITAL STOCK
The authorized capital stock of the Company consists of (i) 200,000,000
shares of Common Stock, $1.00 par value per share, and (ii) 3,000,000 shares of
Preferred Stock, $1.00 par value per share.
On April 30, 1994, there were outstanding (a) 86,315,934 shares of Common
Stock, (b) employee stock options to purchase an aggregate of 1,840,167 shares
of Common Stock (of which options to purchase an aggregate of 1,246,031 shares
of Common Stock were currently exercisable) and (c) rights to purchase Series A
Participating Preferred Stock, $1.00 par value (the "Series A Preferred Stock").
No Preferred Stock had been issued as of such date, although rights to purchase
the Series A Preferred Stock had been distributed to holders of the Common Stock
pursuant to the Rights Agreement, as further described below. A maximum of
1,000,000 shares of Series A Preferred Stock is currently authorized for
issuance upon exercise of such rights. See "Rights Plan" below.
The following descriptions are summaries, and reference is made to the
detailed provisions of the following documents: (i) the Certificate of
Incorporation; (ii) the Company's bylaws; and (iii) the Rights Agreement, as
amended, between the Company and Chemical Bank, successor Rights Agent (the
"Rights Agreement").
COMMON STOCK
Subject to the rights of the holders of any outstanding shares of Preferred
Stock, holders of Common Stock are entitled to receive dividends when, as and if
declared by the Board of Directors out of funds legally available therefor. See
also "Description of Preferred Stock--Dividends". Certain of the Company's
credit agreements contain provisions requiring the maintenance of a minimum
consolidated tangible net worth. Under these provisions, the total consolidated
retained earnings balance of $926.5 million at October 31, 1993 was free of
restrictions as to payment of dividends or acquisition of Common Stock.
Each holder of Common Stock is entitled to one vote for each share held on
all matters voted upon by the stockholders of the Company, including the
election of directors. The Common Stock does not have cumulative voting rights.
Election of directors is decided by the holders of a plurality of the shares
entitled to vote and present in person or by proxy at a meeting for the election
of directors. See "Description of Preferred Stock--Voting Rights" for a
discussion of the voting rights of any Preferred Stock that might be issued in
the future.
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, after the payment or provision for payment of the
debts and other liabilities of the Company and the preferential amounts to which
holders of the Company's Preferred Stock are entitled (if any shares of
Preferred Stock are then outstanding), the holders of Common Stock are entitled
to share ratably in the remaining assets of the Company.
The outstanding shares of Common Stock are, and any shares of Common Stock
offered hereby upon issuance and payment therefor will be, fully paid and
non-assessable. The Common Stock has no preemptive or conversion rights and
there are no redemption or sinking fund provisions applicable thereto.
The Common Stock of the Company is listed on the New York Stock Exchange
(symbol "DE") and the Chicago Stock Exchange. The transfer agent and registrar
is Chemical Bank.
CLASSIFICATION OF BOARD OF DIRECTORS. The Board of Directors of the Company
is divided into three approximately equal classes, having staggered terms of
office of three years each. The effect of a classified Board of Directors may be
to make it more difficult to acquire control of the Company.
DELAWARE GENERAL CORPORATION LAW SECTION 203. The Company is subject to the
provisions of Section 203 of the General Corporation Law of the State of
Delaware ("Delaware Section 203"), the "business combination" statute. In
general, the law prohibits a public Delaware corporation from engaging in a
"business combination" with an "interested stockholder" for a period of three
years after the date of the transaction in which the person became an interested
stockholder, unless (i) prior to such date, the board of directors of the
corporation approved either the business combination or the transaction that
resulted in the
34
<PAGE>
stockholder becoming an interested stockholder, (ii) upon consummation of the
transaction that resulted in the stockholder becoming an interested stockholder,
the interested stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced (excluding certain
shares described in Delaware Section 203), or (iii) on or subsequent to such
date, the business combination is approved by the board of directors of the
corporation and authorized at an annual or special meeting of stockholders and
by the affirmative vote of at least two-thirds of the outstanding voting stock
that is not owned by the "interested stockholder". "Business combination" is
defined to include mergers, asset sales and certain other transactions resulting
in a financial benefit to a stockholder. An "interested stockholder" is defined
generally as a person who, together with affiliates and associates, owns (or,
within the prior three years, did own) 15% or more of a corporation's voting
stock. The Certificate of Incorporation does not exclude the Company from the
restrictions imposed under the statute and the statute could prohibit or delay
the accomplishment of mergers or other takeover or change in control attempts
with respect to the Company and, accordingly, may discourage attempts to acquire
the Company.
RIGHTS PLAN
The Company's Rights Agreement provides that attached to each share of
Common Stock is one right (a "Right") that, when exercisable, entitles the
holder of the Right to purchase one one-hundredth of a share of Series A
Preferred Stock at a purchase price (the "Purchase Price") of $120, subject to
adjustment. The number of Rights attached to each share of Common Stock is
subject to adjustment. In certain events (such as a person or group becoming the
owner of 20% or more of the Common Stock or a merger or other transaction with
an entity controlled by such an acquiring person or group), exercise of the
Rights would entitle the holders thereof (other than the acquiring person or
group) to receive Common Stock or common stock of a surviving corporation, or
cash, property or other securities, with a market value equal to twice the
Purchase Price. Accordingly, exercise of the Rights may cause substantial
dilution to a person who attempts to acquire the Company. The Rights
automatically attach to each outstanding share of Common Stock, including any
shares offered pursuant to the applicable prospectus supplement. There is no
monetary value presently assigned to the Rights, and they will not trade
separately from the Common Stock unless and until they become exercisable. The
Rights, which expire on December 31, 1997, may be redeemed at a price of $.03
per Right at any time until the tenth day following an announcement that an
individual, corporation or other entity (excluding the Company or its
affiliates) has acquired 20% or more of the outstanding Common Stock, except as
otherwise provided in the Rights Agreement. The Rights Agreement may have
certain antitakeover effects, although it is not intended to preclude any
acquisition or business combination that is at a fair price and otherwise in the
best interests of the Company and its stockholders as determined by the Board of
Directors. However, a stockholder could potentially disagree with the Board's
determination of what constitutes a fair price or the best interests of the
Company and its stockholders.
35
<PAGE>
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities to or through underwriters or
dealers, and also may sell the Offered Securities directly to one or more other
purchasers or through agents.
The prospectus supplement sets forth the terms of the offering of the
particular series of Offered Securities to which such prospectus supplement
relates, including (i) the name or names of any underwriters or agents with whom
the Company has entered into arrangements with respect to the sale of such
series of Offered Securities, (ii) the initial public offering or purchase price
of such series of Offered Securities, (iii) any underwriting discounts,
commissions and other items constituting underwriters' compensation from the
Company and any other discounts, concessions or commissions allowed or reallowed
or paid by any underwriters to other dealers, (iv) any commissions paid to any
agents, (v) the net proceeds to the Company and (vi) the securities exchanges,
if any, on which such series of Offered Securities will be listed.
Unless otherwise set forth in the prospectus supplement relating to a
particular series of Offered Securities, the obligations of the underwriters to
purchase such series of Offered Securities will be subject to certain conditions
precedent and each of the underwriters with respect to such series of Offered
Securities will be obligated to purchase all of the Offered Securities of such
series allocated to it if any such Offered Securities are purchased. Any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
The Offered Securities may be offered and sold by the Company directly or
through agents designated by the Company from time to time. Any agent involved
in the offer or sale of the Offered Securities in respect of which this
prospectus is delivered will be named in, and any commissions payable by the
Company to such agent will be set forth in, the applicable prospectus
supplement. Unless otherwise indicated in the applicable prospectus supplement,
each such agent will be acting on a best efforts basis for the period of its
appointment.
Any underwriters, dealers or agents participating in the distribution of
Offered Securities may be deemed to be underwriters and any discounts or
commissions received by them on the sale or resale of Offered Securities may be
deemed to be underwriting discounts and commissions under the Securities Act of
1933, as amended (the "Securities Act"). Underwriters, dealers and agents may be
entitled, under agreements entered into with the Company, to indemnification by
the Company against certain civil liabilities, including liabilities under the
Securities Act.
If so indicated in the prospectus supplement relating to a particular series
of Offered Securities, the Company will authorize underwriters, dealers or
agents to solicit offers by certain institutions to purchase Offered Securities
of such series from the Company pursuant to delayed delivery contracts providing
for payment and delivery at a future date. Such contracts will be subject only
to those conditions set forth in the prospectus supplement and the prospectus
supplement will set forth the commission payable for solicitation of such
contracts.
LEGAL OPINIONS
The validity of the Securities will be passed upon for the Company by
Shearman & Sterling, 599 Lexington Avenue, New York, New York 10022 and for any
underwriters, dealers or agents by Brown & Wood, One World Trade Center, New
York, New York 10048.
EXPERTS
The financial statements and financial statement schedules incorporated in
this prospectus by reference to the Company's Annual Report on Form 10-K have
been audited by Deloitte & Touche, independent auditors, as stated in their
reports, which are incorporated herein by reference, and have been so
incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
36
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses 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
registration fee.
<TABLE>
<S> <C>
S.E.C. registration fee........................................... $ 172,906
Printing and engraving............................................ 110,000
Legal fees and expenses........................................... 135,000
Fees of accountants............................................... 35,000
Fees of trustee................................................... 20,000
Blue sky fees and expenses........................................ 35,000
Rating agency fees................................................ 100,000
Miscellaneous..................................................... 2,094
---------
Total......................................................... $ 610,000
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware authorizes the
registrant to indemnify its directors and officers under specified
circumstances. Article seventh of the restated certificate of incorporation of
the registrant provides in effect that the registrant shall provide certain
indemnification to such persons.
The registrant has contracts of indemnification with its directors and
officers providing that they shall be indemnified to the fullest extent
permitted by law. The contracts also provide: (1) that, in the event of a change
in control, determinations concerning indemnification shall thereafter be made
by independent counsel, instead of the board of directors; (2) that, if
indemnification is not available, in whole or in part, contribution shall be
paid by the registrant in a proportion based upon the relative benefits to, and
relative fault of, the registrant and the director or officer in the action or
inaction, and other equitable considerations; and (3) that any legal action,
brought by or on behalf of the registrant against any director or officer party
to such contract, shall be brought within the shorter of two years from the date
of accrual of such cause of action or the applicable period of limitations for
such cause of action.
The directors and officers of the registrant are insured, under policies of
insurance maintained by the registrant, within the limits and subject to the
limitations of the policies, against certain expenses in connection with the
defense of actions, suits or proceedings, to which they are parties by reason of
being or having been such directors or officers.
Section 6 of the underwriting agreement basic provisions filed as a part of
exhibit 1 to this registration statement provides for indemnification of
directors, officers who sign the registration statement and controlling persons
of the registrant by the underwriters, and for indemnification of each
underwriter and its controlling persons by the registrant, against certain
liabilities. Similar provisions are contained in agreements entered into between
the registrant and groups of underwriters on past occasions.
ITEM 16. LIST OF EXHIBITS.
The exhibits to this registration statement are listed in the exhibit index,
which appears elsewhere herein and is incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(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-1
<PAGE>
(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;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on form S-3 or form S-8 and 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) 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 this registration statement shall be deemed to be a new
registration statement relating to the securities offered thereby, and for the
offering of such securities at that 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 provisions referred to in Item 15 of this
registration statement, 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 Securities Act of 1933 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 Securities Act of 1933 and will be governed by the
final adjudication of such issue.
II-2
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
- -----------
<S> <C>
1.1 Proposed forms of terms agreement and underwriting agreement basic provisions for Debt Securities*
1.2 Proposed form of terms agreement and underwriting agreement basic provisions for Equity Securities
(domestic tranche)*
1.3 Proposed form of terms agreement and underwriting agreement basic provisions for Equity Securities
(international tranche)*
2 Not applicable
4.1 Proposed form of senior indenture between the registrant and The Chase Manhattan Bank (National
Association)*
4.2 Proposed form of fixed rate redeemable or non-redeemable senior security*
4.3 Proposed form of subordinated indenture between the registrant and The Bank of New York*
4.4 Proposed form of fixed rate redeemable or non-redeemable subordinated security*
4.5 Proposed form of debt warrant agreement*
4.6 Proposed form of common stock warrant agreement*
4.7 Proposed form of currency warrant agreement (including proposed form of currency warrant certificate)
(Exhibit 4.4 to registration statement on Form S-3 no. 33-46513**)
4.8 Proposed form of shelf warrant agreement (including proposed form of shelf warrant certificate) (Exhibit
4.5 to registration statement on Form S-3 no. 33-46513**)
4.9 Rights Agreement between the registrant and Morgan Shareholder Services Trust Company, Rights Agent,
dated as of December 9, 1987 (Exhibit 4.5 to Form 10-Q for the quarter ended April 30, 1993, file no.
1-4121**)
4.10 First Amendment to Rights Agreement, between the registrant and First Chicago Trust Co. of New York,
successor Rights Agent, dated as of February 28, 1990 (Exhibit 4.6 to Form 10-Q for the quarter ended
April 30, 1993, file no. 1-4121**)
4.11 Second Amendment to Rights Agreement, between the registrant and First Chicago Trust Co. of New York,
successor Rights Agent, dated as of March 1, 1991 (Exhibit 4.7 to Form 10-Q for the quarter ended April
30, 1993, file no. 1-4121**)
4.12 Proposed form of deposit agreement (including proposed form of depositary receipt)*
5 Opinion of Shearman & Sterling*
8 Not applicable
12 Deere & Company and Consolidated Subsidiaries computation of ratio of earnings before fixed charges to
fixed charges (Exhibit 12 to Form 10-Q for the quarter ended April 30, 1994**)
15 Not applicable
23.1 Consent of Deloitte & Touche*
23.2 Consent of Shearman & Sterling (included in their opinion filed as Exhibit 5)*
24 Not applicable
25.1 Statement of eligibility of The Chase Manhattan Bank (National Association) under the Trust Indenture Act
of 1939 on Form T-1*
25.2 Statement of eligibility of The Bank of New York under the Trust Indenture Act of 1939 on Form T-1*
26 Not applicable
27 Not applicable
28 None
99 None
</TABLE>
- ---------
_*Previously filed.
**Incorporated by reference.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this amendment no. 1 to
the registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the County of Rock Island, State of Illinois, on
August 10, 1994.
DEERE & COMPANY
By: /s/ HANS W. BECHERER
-----------------------------------
HANS W. BECHERER
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this amendment
no. 1 to the registration statement has been signed below by the following
persons in the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- -------------------------------------------- -------------------------------------------- ----------------------
<C> <S> <C>
/s/ HANS W. BECHERER Chairman, Director and Principal Executive
---------------------------------- Officer
HANS W. BECHERER
JOHN R. BLOCK* Director
----------------------------------
JOHN R. BLOCK
REGINA E. HERZLINGER* Director
----------------------------------
REGINA E. HERZLINGER
SAMUEL C. JOHNSON* Director
----------------------------------
SAMUEL C. JOHNSON
ARTHUR L. KELLY* Director
----------------------------------
ARTHUR L. KELLY
August 10, 1994
P.E. LEROY* Senior Vice President, Principal Financial
---------------------------------- Officer and Principal Accounting Officer
P.E. LEROY
A. SANTAMARINA V.* Director
----------------------------------
AGUSTIN SANTAMARINA V.
WILLIAM A. SCHREYER* Director
----------------------------------
WILLIAM A. SCHREYER
D. H. STOWE, JR.* Director
----------------------------------
D. H. STOWE, JR.
JOHN R. WALTER* Director
----------------------------------
JOHN R. WALTER
*By:/s/HANS W. BECHERER
------------------------------
HANS W. BECHERER
ATTORNEY-IN-FACT
</TABLE>
II-4
