<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 6, 1995
Registration No. 33-58609
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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EDISON BROTHERS STORES, INC.
(Exact name of registrant as specified in its charter)
Delaware 43-0254900
- --------------------------------------- -------------------------------------
(State or other jurisdiction (IRS employer
of incorporation or organization) identification number)
501 North Broadway
St. Louis, Missouri 63102
(314) 331-6000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
------------------------------
Alan A. Sachs, Esq.
Edison Brothers Stores, Inc.
501 North Broadway
St. Louis, Missouri 63102
(314) 331-6565
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
James L. Nouss, Jr.
Bryan Cave
211 North Broadway, Suite 3600
St. Louis, Missouri 63102-2750
(314) 259-2000
------------------------------
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on the form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
<PAGE> 2
If any of the securities registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration Act registration
statement number of the earlier effective registration statement for the same
offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [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> 3
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JUNE __, 1995
PROSPECTUS
[CORPORATE LOGO] Edison Brothers Stores, Inc.
Debt Securities
Preferred Stock
Depositary Shares
Common Stock
Warrants
Edison Brothers Stores, Inc. (the "Company"), a Delaware corporation,
may offer from time to time (a) in one or more series, unsecured debentures,
notes, or other obligations ("Debt Securities"), which may be subordinated to
other indebtedness of the Company, (b) warrants to purchase Debt Securities
("Debt Warrants"), (c) shares of preferred stock of one or more series
("Preferred Stock"), (d) warrants to purchase shares of Preferred Stock
("Preferred Stock Warrants"), (e) depositary shares representing entitlement to
all rights and preferences of a fraction of a share of Preferred Stock of a
specified series ("Depositary Shares"), (f) shares of common stock, par value
$1.00 per share ("Common Stock"), or (g) warrants to purchase shares of Common
Stock ("Common Stock Warrants"), all having an aggregate initial public
offering price not to exceed $300,000,000 or the equivalent thereof in one or
more foreign currencies, foreign currency units, or composite currencies,
including European Currency Units. The Debt Warrants, Preferred Stock
Warrants, and Common Stock Warrants are referred to herein collectively as
"Warrants," and the Debt Securities, Preferred Stock, Depositary Shares, Common
Stock, and Warrants are referred to herein collectively as the "Offered
Securities." The Offered Securities may be offered separately or as units with
other Offered Securities, in separate series in amounts, at prices, and on
terms to be determined at or prior to the time of sale.
The specific terms of the Offered Securities with respect to which
this Prospectus is being delivered will be set forth in a supplement to this
Prospectus (a "Prospectus Supplement"), together with the terms of the offering
and sale of the Offered Securities and the initial offering price and the net
proceeds to the Company from the sale thereof. The Prospectus Supplement will
include, with regard to the particular Offered Securities, the following
information: (a) in the case of Debt Securities, the specific designation,
aggregate principal amount, ranking, authorized denomination, maturity, rate or
method of calculation of interest and dates for payment thereof, any index or
formula for determining the amount of any principal, premium, or interest
payment, any exchangeability, conversion, redemption, prepayment, or sinking
fund provisions, the currency or currency unit in which principal, premium, or
interest is payable, whether the securities are issuable in registered form or
in the form of global securities, and the designation of the trustee acting
<PAGE> 4
under the applicable indenture; (b) in the case of Preferred Stock, the
designation, number of shares, liquidation preference per share, dividend rate
(or method of calculation thereof), dividend payment dates and dates from which
dividends shall accrue, any redemption or sinking fund provisions, any
conversion or exchange rights, whether the Company has elected to offer the
Preferred Stock in the form of Depositary Shares, and, if so, the fraction of a
share of Preferred Stock which each such Depositary Share will represent;
(c) in the case of Common Stock, the number of shares; (d) in the case of
Warrants, the number and terms thereof, the designation and number of
securities issuable upon exercise, the exercise price, and the duration and
detachability thereof where applicable; and (e) in the case of all Offered
Securities, whether such Offered Securities will be offered separately or as a
unit with other Offered Securities. The Prospectus Supplement will also
contain information, where applicable, about material United States federal
income tax considerations relating to, and any listings on a securities
exchange of, the Offered Securities covered by such Prospectus Supplement.
The Company's Common Stock is listed on the New York Stock Exchange.
Any Common Stock offered will be listed, subject to notice of issuance, on such
exchange.
The Company may sell the Offered Securities directly, through agents
designated from time to time, or through underwriters or dealers. If any
agents, underwriters, or dealers are involved in the sale of the Offered
Securities, the names of such agents, underwriters, or dealers and any
applicable commissions or discounts and the net proceeds to the Company from
such sale will be set forth in the applicable Prospectus Supplement.
This Prospectus may not be used to consummate sales of Offered
Securities unless accompanied by a Prospectus Supplement.
See "Risk Factors" on pages 6, 7 and 8 of this Prospectus for certain
considerations relevant to an investment in the Offered Securities.
------------------------------
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 _____________ , 1995.
<PAGE> 5
IN CONNECTION WITH AN OFFERING OF OFFERED SECURITIES, THE
UNDERWRITERS, IF ANY, FOR SUCH OFFERING MAY OVER-ALLOT OR EFFECT TRANSACTIONS
WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE OFFERED SECURITIES AT
LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements, and other information
with the Securities and Exchange Commission (the "SEC"). Those reports, proxy
statements, and other information can be inspected and copied at the public
reference facilities maintained by the SEC at Room 1024, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, and at the following SEC regional
offices: 13th Floor, 7 World Trade Center, New York, New York 10048; and Suite
1400, Citicorp Center, 500 West Madison Street, Chicago, Illinois 60661.
Copies of such materials can be obtained at prescribed rates from the Public
Reference Section of the SEC at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549. Such reports, proxy statements, and other information
also may be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005.
The Company has filed with the SEC a Registration Statement on
Form S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Offered Securities. This
Prospectus does not contain all the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the SEC. For further information with respect to the Company
and the Offered Securities, reference is made to the Registration Statement and
to the exhibits thereto. Statements contained herein concerning the provisions
of certain documents are not necessarily complete, and in each instance,
reference is made to the copy of such document filed as an exhibit to the
Registration Statement or otherwise filed with the SEC. Each such statement is
qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Incorporated by reference in this Prospectus as of the date of filing,
and deemed to be a part hereof, subject in each case to information contained
in this Prospectus, are the following documents filed by the Company with the
SEC pursuant to the Exchange Act (File No. 1-1394): (i) the Company's Annual
Report on Form 10-K for the fiscal year ended January 28, 1995, as amended by
Amendment No. 1 on Form 10-K/A, and (ii) the Company's Current Report on Form
8-K, dated May 25, 1995.
All documents filed by the Company pursuant to Section 13(a), 14, or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering made hereby shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
date of 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 any subsequently filed document
<PAGE> 6
that also is or is deemed to be incorporated by reference herein or in any
Prospectus Supplement modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed to constitute a part of this
Prospectus, except as so modified or superseded.
The Company will provide without charge to each person to whom a copy
of this Prospectus has been delivered, on the written or oral request of any
such person, a copy of any or all of the documents referred to above that have
been or may be incorporated by reference into this Prospectus, other than
exhibits to such documents (unless such exhibits are specifically incorporated
by reference into such documents). Written or telephone requests for such
copies should be directed to Edison Brothers Stores, Inc., Attention: Corporate
Secretary, 501 North Broadway, St. Louis, Missouri 63102 (telephone (314) 331-
6000).
RISK FACTORS
Recent Sales Declines
The Company has experienced declines in comparable store apparel sales
for the past two fiscal years. Management believes that these declines have
been due primarily to a lackluster fashion environment, a shift in consumer
purchases to electronics and other hardgoods, and increased promotional
activity. These factors have exerted downward pressure on the Company's gross
margins, with an adverse impact on the Company's operating results. The
Company is seeking to improve its operating results by making organizational
and merchandising changes and controlling inventories. Although management
believes that these efforts will help improve operating results, there can be
no assurance that such improvements will occur or that future declines in
apparel sales or further reductions in gross margins will not occur. The
Company's future operating results and financial condition may also be
adversely affected by uncertainties relative to domestic and international
economic considerations.
In response to these factors, subsequent to the end of fiscal year
1994 the Company entered into amendments of its credit facility agreement (the
"Credit Agreement") and its senior note agreements, to give the Company greater
operating flexibility and to ensure covenant compliance during the first
quarter of fiscal year 1995.
Risks of Fashion Retailing
The fashion retail market is subject to fluctuations resulting from
changes in customer preferences dictated by fashion and season, particularly in
the case of stores that emphasize fashion over classic basics, such as certain
of the retail chains operated by the Company. Failure to predict and
accurately market for rapidly changing fashion trends may have a material
adverse effect on the level of sales of products marketed by the Company.
Merchandise usually must be ordered a significant time in advance of the season
and sometimes before fashion trends are evidenced by customer purchases. It
has been the general practice of the Company and other apparel retailers to
build up inventory levels prior to peak selling seasons, which further
increases the vulnerability of the Company to demand and pricing shifts and to
errors in selection and timing of the purchases of merchandise.
<PAGE> 7
Risks of Mall-Based Operations
The Company's retail stores are located primarily in shopping malls.
The level of sales in such mall-based stores is affected not only by
competitive factors within each mall, but also by the increasing array of
retailing options that are being offered to consumers, such as free-standing
retail fashion stores, mail order companies, and discount and manufacturer's
outlet stores. Within each mall, the Company's stores face competition from
other nearby retailers, and a store's sales can be affected not only by its
location in relation to its competitors but also by its proximity to other
points of attraction. Management believes that the Company currently has
advantageous locations within a large number of its mall settings. However,
failure to locate new stores in advantageous locations or failure to obtain
renewal of the Company's current attractive mall locations may have a material
adverse effect on the Company's earnings.
Adverse and Unseasonal Weather Conditions
As a mall-based retailer, the Company's sales can be adversely
affected by weather conditions that discourage consumers from traveling to
malls for shopping. In addition, unseasonal weather can lead to reduced sales
of the apparel being emphasized by the Company's stores for that season.
Competition
The specialty retailing business is highly competitive and continues
to be characterized by fluctuating demand patterns, frequent introduction of
new merchandise, aggressive pricing practices and downward pressure on gross
margins. The Company's failure to respond to such competitive challenges
quickly and effectively could have a material adverse effect on the earnings of
the Company.
Foreign Sourcing of Merchandise
The Company purchases merchandise primarily from foreign suppliers.
It does not manufacture any merchandise. The Company's importing operations
are subject to the contingencies generally associated with foreign operations,
including fluctuations in currency values, customs duty increases, quota
limitations and other developments that could cause a disruption of import
supply, any of which could have a material adverse effect on the Company's
operations.
Seasonality
Sales in the fourth quarter are traditionally higher than in other
quarterly periods because of holiday buying patterns. Accordingly, the
Company's sales and profits have traditionally been higher in the fourth
quarter of the year than in the other three quarters and the Company expects
this trend to continue.
<PAGE> 8
Interest Rate Increases
The Company currently has material obligations under the Credit
Agreement dated June 4, 1993, as amended, and various short-term bank lines.
The Company's borrowings under the Credit Agreement and the short-term bank
lines bear interest at floating rates. Therefore, increases in interest rates
on such borrowings could have a material adverse effect on the financial
condition or results of operations of the Company.
THE COMPANY
The Company is a leading specialty retailer of fashion apparel and
footwear operating more than 2,700 stores in all fifty states of the United
States, Puerto Rico, the Virgin Islands, Mexico, and Canada. The Company
conducts its principal operations through subsidiaries and divisions in two
segments: apparel and footwear. Stores within the apparel and footwear
segments, with the exception of the Repp, Ltd. chain of big-and-tall mens
stores, are almost exclusively mall-based and generally range in size from
1,300 to 3,000 square feet. Both the apparel and the footwear segments
primarily feature private label merchandise in the moderate price range. The
Company also operates an entertainment division composed of predominantly mall-
based entertainment centers and five free-standing restaurant/entertainment
complexes. In February 1995, the Company announced plans to spin off its
subsidiary that owns and operates the five Dave & Buster's
restaurant/entertainment complexes as a separate publicly-held corporation.
The Company anticipates that the spin off will occur in the second quarter of
fiscal year 1995.
At fiscal year-end 1994, the apparel segment operated 1,941 stores in
eight chains. The six menswear chains--JW/Jeans West, Oaktree, J.Riggings,
Coda, Repp Ltd., and Zeidler & Zeidler--target specific male age and lifestyle
profiles with different product selections. Phoenix, the Company's first
catalog operation, supplies menswear to big and tall consumers. The womenswear
chains--5-7-9 and Spirale--primarily market casual wear and accessories to
young adults, teens, and pre-teens.
The footwear segment operated 681 stores in three chains at the end of
fiscal 1994. The footwear chains are Bakers/Leeds and Precis, which offer
popular-priced women's fashion shoes, and Wild Pair, which focuses on advanced
shoe fashion for both young men and women.
The Company's executive offices and operating headquarters are located
at 501 North Broadway, St. Louis, Missouri 63102, and its telephone number at
those offices is (314) 331-6000.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement,
the net proceeds from the sale of the Offered Securities will be used for
general corporate purposes, which may include the repayment of indebtedness,
acquisitions, additions to working capital, and capital expenditures.
<PAGE> 9
RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following sets forth the Company's consolidated ratios of earnings
to fixed charges and earnings to combined fixed charges and preferred stock
dividends for each of fiscal years 1994, 1993, 1992, 1991, and 1990.
<TABLE>
<CAPTION>
Fiscal Year <F1>
----------------------------
1994 1993 1992 1991 1990
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges <F2>.......... 1.5 1.5 2.8 2.5 2.8
Ratio of earnings to fixed charges
and preferred stock dividends <F3>............. 1.5 1.5 2.8 2.5 2.8
- ---------------
<FN>
<F1> The Company's fiscal year ends on the Saturday closest to January 31.
References to fiscal years 1994, 1993, 1992, 1991, and 1990 are to the
52 weeks ended January 28, 1995, January 29, 1994, January 30, 1993,
February 1, 1992, and February 2, 1991, respectively.
<F2> For purposes of computing such ratio, earnings consist of income
before income taxes plus fixed charges net of interest capitalized,
and fixed charges consist of interest expense, interest capitalized,
and the portion of rental expense attributable to interest.
<F3> For purposes of computing such ratio, earnings consist of income
before income taxes plus fixed charges and preferred stock dividends
net of interest capitalized, and fixed charges and preferred stock
dividends consist of interest expense, interest capitalized, the
portion of rental expense attributable to interest, and preferred
stock dividends.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute either senior or
subordinated debt of the Company and will be issued, in the case of senior Debt
Securities ("Senior Debt Securities"), under one or more indentures
(collectively, the "Senior Indenture"), between the Company and Fleet Bank of
Massachusetts, N.A., (the "Senior Trustee"), and, in the case of subordinated
Debt Securities ("Subordinated Debt Securities"), under one or more indentures
(collectively, the "Subordinated Indenture"), between the Company and one or
more trustees to be selected by the Company (collectively, the "Subordinated
Trustee"). The Senior Indenture and the Subordinated Indenture are sometimes
hereinafter referred to individually as the "Indenture" and collectively as the
"Indentures," and the Senior Trustee and the Subordinated Trustee are
hereinafter referred to as the "Trustee."
The following description of the terms of the Debt Securities sets
forth certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Debt Securities so offered will be
<PAGE> 10
described in the Prospectus Supplement relating to such Debt Securities.
Accordingly, for a description of the terms of a particular issue of Debt
Securities, reference must be made to both the Prospectus Supplement relating
thereto and to the following description. The discussion of the terms of the
Debt Securities and certain provisions of the Indentures is a summary only,
does not purport to be complete, and is qualified in its entirety by reference
to the provisions of the Indentures, including the definitions therein of
capitalized terms used below.
General
The Debt Securities will be general unsecured obligations of the
Company and may be subordinated to certain other indebtedness of the Company to
the extent set forth in the Prospectus Supplement relating thereto. See
"Description of Debt Securities--Subordination of Subordinated Debt Securities"
below. The Indentures do not limit the aggregate principal amount of Debt
Securities that can be issued thereunder. The Debt Securities may be issued in
one or more series as may be authorized from time to time by the Company.
Reference is made to the applicable Prospectus Supplement for the terms of the
Debt Securities of the series with respect to which such Prospectus Supplement
is being delivered, including: (i) the title, aggregate principal amount, and
authorized denominations of the Debt Securities; (ii) the percentage of their
principal amount at which such Debt Securities will be issued; (iii) the date
or dates on which the Debt Securities will mature; (iv) the rate or rates
(which may be fixed or variable) per annum, if any, at which the Debt
Securities will bear interest and the date or dates from which such interest
may accrue; (v) the times and places at which principal and any premium and
interest will be payable; (vi) whether the Debt Securities are convertible into
any other securities and the terms and conditions of such convertibility;
(vii) the period or periods within which, the price or prices at which, and the
terms and conditions on which any of such Debt Securities may be redeemed, in
whole or in part, at the option of the Company; (viii) the obligation, if any,
of the Company to redeem or purchase any of such Debt Securities pursuant to
any sinking fund or analogous provision or at the option of the holder thereof,
and the period or periods within which, the price or prices at which, and the
terms and conditions on which any of such Debt Securities will be redeemed or
purchased, in whole or in part, pursuant to any such obligation; (ix) if other
than United States currency, the currency of payment of principal of, premium,
if any, and interest on the Debt Securities and the manner of determining the
equivalent thereof in the currency of the United States of America for any
purpose; (x) any index or other basis used to determine the amount of payments
of principal of and any premium and interest on the Debt Securities; (xi)
whether the Debt Securities will be represented by a single global note
registered in the name of a depositary or a depositary's nominee and, if so,
the depositary for, the method of transferring beneficial interests in the
global note and the form of any legend which shall be borne on such Global
Securities; (xii) ranking as Subordinated Debt Securities, if applicable, and
the terms of any such subordination; (xiii) any addition to or change in the
Events of Default applicable to such Debt Securities, any change in the right
of the Trustee or the holders to declare the principal amount of any such Debt
Securities due and payable, and, if other than the principal amount thereof,
the amount payable upon acceleration of the maturity thereof; (xiv) any
addition to or change in the covenants in the Senior Indenture described under
"Description of Debt Securities--Certain Covenants of the Company" applicable
to such Debt Securities; (xv) whether the Debt Securities shall be defeasible
at the option of the Company and the manner in which such election shall be
evidenced; and (xvi) any other terms relating to the Debt Securities of the
<PAGE> 11
series not inconsistent with the applicable Indenture, including any terms that
may be required by or advisable under United States laws or applicable
regulations, or advisable in connection with the marketing of the Debt
Securities.
The Prospectus Supplement will also describe any material United
States federal income tax consequences or other special considerations
applicable to the series of Debt Securities to which such Prospectus Supplement
relates, including those applicable to (a) Debt Securities with respect to
which payments of principal, premium, or interest are determined with reference
to an index or formula (including changes in prices of particular securities,
currencies, or commodities), (b) Debt Securities with respect to which
principal, premium, or interest is payable in a currency other than the
currency of the United States, (c) Debt Securities that are issued at a
discount below their stated principal amount, bearing no interest or interest
at a rate that at the time of issuance is below market rates ("Original Issue
Discount Debt Securities"), and (d) variable rate Debt Securities that are
exchangeable for fixed rate Debt Securities.
Unless otherwise provided in the applicable Prospectus Supplement,
Debt Securities may be transferred or exchanged at the office of the Trustee at
which its corporate trust business is principally administered in the United
States or at the office of the Trustee or the Trustee's agent at which its
corporate agency business is conducted, subject to the limitations provided in
the Indenture, without the payment of any service charge, other than any
applicable tax or governmental charge.
All funds paid by the Company to the Trustee or a paying agent, or
held in trust by the Company for the payment of principal, premium, or interest
with respect to any Debt Securities and remaining unclaimed at the end of two
years after such principal, premium, or interest shall have become due and
payable will be repaid to the Company or released from such trust, and the
holders of such Debt Securities will thereafter look only to the Company for
payment thereof.
Global Securities
The Debt Securities of a series may be issued in whole or in part in
the form of one or more Global Securities. A Global Security is a Debt
Security that represents, and is denominated in an amount equal to the
aggregate principal amount of, all outstanding Debt Securities of the series,
or any portion thereof, in either case having the same terms, including the
same original issue date, principal and interest payment dates, and interest
rate or method of determining interest. A Global Security will be deposited
with, or on behalf of, a Depositary, which will be identified in the Prospectus
Supplement relating to such Debt Securities. Global Securities may be issued
in either temporary or definitive registered form. Unless and until it is
exchanged in whole or in part for the individual Debt Securities represented
thereby, a Global Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to
the Depositary or another nominee of the Depositary, or by the Depositary or
any nominee of the Depositary to a successor Depositary or any nominee of such
successor.
<PAGE> 12
The specific terms of the depositary arrangement with respect to a
series of Debt Securities will be described in the Prospectus Supplement
relating to such Debt Securities. The Company anticipates that the following
provisions will generally apply to depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security will credit, on its book-entry registration and transfer system, the
respective principal amounts of the individual Debt Securities represented by
such Global Security to the accounts of persons that have accounts with the
Depositary ("participants"). Such accounts shall be designated by the dealers
or underwriters with respect to such Debt Securities or, if such Debt
Securities are offered and sold directly by the Company or through one or more
agents, by the Company or such agents. Ownership of beneficial interests in a
Global Security will be limited to participants or persons that hold beneficial
interests through participants. Ownership of beneficial interests in such
Global Security will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the Depositary (with respect to
interests of participants) or records maintained by participants (with respect
to interests of persons other than participants). The laws of some states
require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such limitations and laws may impair the
ability to transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is
the registered owner or holder of such Global Security, such Depositary or
nominee, as the case may be, will be considered the sole owner or holder of the
individual Debt Securities represented by such Global Security for all purposes
under the Indenture. Except as provided below, owners of beneficial interests
in a Global Security will not be entitled to have any of the individual Debt
Securities represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of any of such Debt
Securities in definitive form, and will not be considered the owners or holders
thereof under the Indenture.
Payments of principal, premium, and interest with respect to
individual Debt Securities represented by a Global Security will be made to the
Depositary or its nominee, as the case may be, as the registered owner or
holder of such Global Security. Neither the Company, the Trustee, any paying
agent or registrar for such Debt Securities, nor any agent of the Company or
the Trustee will have any responsibility or liability for (a) any aspect of the
records relating to or payments made by the Depositary, its nominee, or any
participants on account of beneficial interests in the Global Security or for
maintaining, supervising, or reviewing any records relating to such beneficial
interests, (b) the payment to the owners of beneficial interests in the Global
Security of amounts paid to the Depositary or its nominee, or (c) any other
matter relating to the actions and practices of the Depositary, its nominee, or
its participants. Neither the Company, the Trustee, any paying agent or
registrar for such Debt Securities, or any agent of the Company or the Trustee
will be liable for any delay by the Depositary, its nominee, or any of its
participants in identifying the owners of beneficial interests in the Global
Security, and the Company and the Trustee may conclusively rely on, and will be
protected in relying on, instructions from the Depositary or its nominee for
all purposes.
The Company expects that the Depositary for a series of Debt
Securities or its nominee, upon receipt of any payment of principal, premium,
or interest with respect to a definitive Global Security representing any of
such Debt Securities, will immediately credit participants' accounts with
<PAGE> 13
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Security, as shown on the records of the
Depositary or its nominee. The Company also expects that payments by
participants to owners of beneficial interests in such Global Security held
through such participants will be governed by standing instructions and
customary practices, as is the case with securities held for the accounts of
customers and registered in "street name." Such payments will be the
responsibility of such participants.
If the Depositary for a series of Debt Securities is at any time
unwilling, unable, or ineligible to continue as depositary, the Company shall
appoint a successor depositary. If a successor depositary is not appointed by
the Company within 90 days, the Company will issue individual Debt Securities
of such series in exchange for the Global Security representing such series of
Debt Securities. In addition, the Company may at any time and in its sole
discretion, subject to any limitations described in the Prospectus Supplement
relating to such Debt Securities, determine no longer to have Debt Securities
of a series represented by a Global Security and, in such event, will issue
individual Debt Securities of such series in exchange for the Global Security
representing such series of Debt Securities. Furthermore, if the Company so
specifies with respect to the Debt Securities of a series, an owner of a
beneficial interest in a Global Security representing Debt Securities of such
series may, on terms acceptable to the Company, the Trustee, and the Depositary
for such Global Security, receive individual Debt Securities of such series in
exchange for such beneficial interests, subject to any limitations described in
the Prospectus Supplement relating to such Debt 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 of the series
represented by such Global Security equal in principal amount to such
beneficial interest and to have such Debt Securities registered in its name.
Individual Debt Securities of such series so issued will be issued in
registered form in denominations, unless otherwise specified by the Company, of
$1,000 and integral multiples thereof.
Subordination of Subordinated Debt Securities
If Subordinated Debt Securities are issued, a Prospectus Supplement
relating thereto will describe the terms whereby such Subordinated Debt
Securities will be made subordinate and subject in right of payment to the
prior payment in full of senior indebtedness of the Company, and such
description will include a definition of what constitutes "senior indebtedness"
of the Company.
Certain Covenants of the Company
Unless otherwise indicated in the applicable Prospectus Supplement,
the Debt Securities will not have the benefit of any covenants that limit or
restrict the Company's business or operations or the incurrence of indebtedness
by the Company. If so indicated in the applicable Prospectus Supplement
relating to a series of Senior Debt Securities, certain covenants contained in
the Senior Indenture which are summarized below will be applicable (unless
waived or amended) to such series of Senior Debt Securities. The covenants
contained in the Senior Indenture and any series of Senior Debt Securities
would not necessarily afford holders of such Debt Securities protection in the
event of a highly leveraged or other transaction involving the Company that may
adversely affect holders.
<PAGE> 14
Limitations on Liens
The Company covenants that it will not issue, incur, create, assume or
guarantee, and will not permit any Restricted Subsidiary (as defined below) to
issue, incur, create, assume or guarantee, any debt for borrowed money secured
by a mortgage, security interest, pledge, lien, charge or other encumbrance
("mortgages") upon any Principal Property (as defined below) of the Company or
any Restricted Subsidiary or upon any shares of stock or indebtedness of any
Restricted Subsidiary (whether such Principal Property, shares or indebtedness
are now existing or owned or hereafter created or acquired) without in any such
case effectively providing concurrently with the issuance, incurrence,
creation, assumption or guarantee of any such secured debt, or the grant of a
mortgage with respect to any such indebtedness, that the Debt Securities
(together with, if the Company shall so determine, any other indebtedness of or
guarantee by the Company or such Restricted Subsidiary ranking equally with the
Debt Securities) shall be secured equally and ratably with (or, at the option
of the Company, prior to) such secured debt. The foregoing restriction,
however, will not apply to: (a) mortgages on property existing at the time of
acquisition thereof by the Company or any Subsidiary, provided that such
mortgages were in existence prior to the contemplation of such acquisition;
(b) mortgages on property, shares of stock or indebtedness or other assets of
any corporation existing at the time such corporation becomes a Restricted
Subsidiary, provided that such mortgages are not incurred in anticipation of
such corporation becoming a Restricted Subsidiary; (c) mortgages on property,
shares of stock or indebtedness existing at the time of acquisition thereof by
the Company or a Restricted Subsidiary or mortgages thereon to secure the
payment of all or any part of the purchase price thereof, or mortgages on
property, shares of stock or indebtedness to secure any indebtedness for
borrowed money incurred prior to, at the time of, or within 270 days after, the
latest of the acquisition thereof, or, in the case of property, the completion
of construction, the completion of improvements, or the commencement of
substantial commercial operation of such property for the purpose of financing
all or any part of the purchase price thereof, such construction, or the making
of such improvements; (d) mortgages to secure indebtedness owing to the Company
or to a Restricted Subsidiary; (e) mortgages existing at the date of the
Indenture relating to such Debt Securities; (f) mortgages on property of a
corporation existing at the time such corporation is merged into or
consolidated with the Company or a Restricted Subsidiary or at the time of a
sale, lease or other disposition of the properties of a corporation as an
entirety or substantially as an entirety to the Company or a Restricted
Subsidiary, provided that such mortgage was not incurred in anticipation of
such merger or consolidation or sale, lease or other disposition; (g) mortgages
in favor of the United States or any State, territory or possession thereof (or
the District of Columbia), or any department, agency, instrumentality or
political subdivision of the United States or any State, territory or
possession thereof (or the District of Columbia), to secure partial, progress,
advance or other payments pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any part of the
purchase price or the cost of constructing or improving the property subject to
such mortgages; (h) mortgages created in connection with the acquisition of
assets or a project financed with, and created to secure, a Nonrecourse
Obligation (as defined below); and (i) extensions, renewals, refinancings or
replacements of any mortgage referred to in the foregoing clauses (a), (b),
(c), (e), (f), (g) and (h); provided, however, that any mortgages permitted by
any of the foregoing clauses (a), (b), (c), (e), (f), (g) and (h) shall not
extend to or cover any property of the Company or such Restricted Subsidiary,
as the case may be, other than the property, if any, specified in such clauses
and improvements thereto, and provided further that any refinancing or
<PAGE> 15
replacement of any mortgages permitted by the foregoing clauses (g) and (h)
shall be of the type referred to in such clauses (g) or (h), as the case may
be.
Notwithstanding the restrictions outlined in the preceding paragraph,
the Company or any Restricted Subsidiary will be permitted to issue, incur,
create, assume or guarantee debt secured by a mortgage which would otherwise be
subject to such restrictions, without equally and ratably securing the Debt
Securities, provided that after giving effect thereto, the aggregate amount of
all debt so secured by mortgages (not including mortgages permitted under
clauses (a) through (i) above) does not exceed 10% of the Consolidated Net
Tangible Assets (as defined below) of the Company.
Limitations on Sale and Lease-Back Transactions
The Company covenants that it will not, nor will it permit any
Restricted Subsidiary to, enter into any Sale and Lease-Back Transaction (as
defined below) with respect to any Principal Property, other than any such
transaction involving a lease for a term of not more than three years or any
such transaction between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries, unless: (a) the Company or such Restricted Subsidiary
would be entitled to incur indebtedness secured by a mortgage on the Principal
Property involved in such transaction at least equal in amount to the
Attributable Debt (as defined below) with respect to such Sale and Lease-Back
Transaction, without equally and ratably securing the Debt Securities, pursuant
to the limitation on liens in the Indenture; or (b) the Company shall apply an
amount equal to the greater of the net proceeds of such sale or the
Attributable Debt with respect to such Sale and Lease-Back Transaction within
180 days of such sale to either (or a combination of) the retirement (other
than any mandatory retirement, mandatory prepayment or sinking fund payment or
by payment at maturity) of debt for borrowed money of the Company or a
Restricted Subsidiary that matures more than 12 months after the creation of
such indebtedness or the purchase, construction or development of other
comparable property.
Certain Definitions Applicable to Covenants
The term "Attributable Debt" when used in connection with a Sale and
Lease-Back Transaction involving a Principal Property shall mean, at the time
of determination, the lesser of: (a) the fair value of such property (as
determined in good faith by the Board of Directors of the Company); or (b) the
present value of the total net amount of rent required to be paid under such
lease during the remaining term thereof (including any renewal term or period
for which such lease has been extended), discounted at the rate of interest set
forth or implicit in the terms of such lease or, if not practicable to
determine such rate, the weighted average interest rate per annum (in the case
of Original Issue Discount Securities, the imputed interest rate) borne by the
Debt Securities of each series outstanding pursuant to the Indenture compounded
semi-annually. For purposes of the foregoing definition, rent shall not
include amounts required to be paid by the lessee, whether or not designated as
rent or additional rent, on account of or contingent upon maintenance and
repairs, insurance, taxes, assessments, water rates and similar charges. In
the case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall be the lesser of the net amount determined
assuming termination upon the first date such lease may be terminated (in which
case the net amount shall also include the amount of the penalty, but no rent
<PAGE> 16
shall be considered as required to be paid under such lease subsequent to the
first date upon which it may be so terminated) or the net amount determined
assuming no such termination.
The term "Consolidated Net Tangible Assets" shall mean, as of any
particular time, total assets (excluding applicable reserves and other properly
deductible items) less: (a) total current liabilities, except for (1) notes and
loans payable, (2) current maturities of long-term debt, and (3) current
maturities of obligations under capital leases; and (b) goodwill, patents and
trademarks, to the extent included in total assets; all as set forth on the
most recent consolidated balance sheet of the Company and its consolidated
subsidiaries and computed in accordance with generally accepted accounting
principles.
The term "Nonrecourse Obligation" means indebtedness or other
obligations substantially related to (i) the acquisition of assets not
previously owned by the Company or any Restricted Subsidiary or (ii) the
financing of a project involving the development or expansion of properties of
the Company or any Restricted Subsidiary, as to which the obligee with respect
to such indebtedness or obligation has no recourse to the Company or any
Restricted Subsidiary or any assets of the Company or any Restricted Subsidiary
other than the assets which were acquired with the proceeds of such transaction
or the project financed with the proceeds of such transaction (and the proceeds
thereof).
The term "Principal Property" shall mean the land, land improvements,
buildings and fixtures (to the extent they constitute real property interests)
(including any leasehold interest therein) constituting the principal corporate
office or any distribution center (whether now owned or hereafter acquired)
which: (a) is owned by the Company or any Subsidiary; (b) is located within any
of the present 50 states of the United States (or the District of Columbia);
(c) has not been determined in good faith by the Board of Directors of the
Company not to be materially important to the total business conducted by the
Company and its Subsidiaries taken as a whole; and (d) has a market value on
the date as of which the determination is being made in excess of 1.0% of
Consolidated Net Tangible Assets of the Company as most recently determined on
or prior to such date.
The term "Restricted Subsidiary" shall mean any Subsidiary that owns
any Principal Property.
The term "Sale and Lease-Back Transaction" shall mean any arrangement
with any person providing for the leasing by the Company or any Restricted
Subsidiary of any Principal Property which property has been or is to be sold
or transferred by the Company or such Restricted Subsidiary to such person.
The term "Subsidiary" shall mean any corporation of which at least a
majority of the outstanding voting stock having the power to elect a majority
of the board of directors of such corporation is at the time owned, directly or
indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of this
definition, "voting stock" means stock which ordinarily has voting power for
the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
<PAGE> 17
Consolidation, Merger, and Sale of Assets
Under the terms of the Indenture, the Company shall not consolidate
with or merge into any other person or convey, transfer or lease its properties
and assets substantially as an entirety to any person, and the Company shall
not permit any person to consolidate with or merge into the Company or convey,
transfer or lease its properties and assets substantially as an entirety to the
Company, unless:
(1) in case the Company shall consolidate with or merge
into another person or convey, transfer or lease its properties and
assets substantially as an entirety to any person, the person formed
by such consolidation or into which the Company is merged or the
person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety
shall be a corporation, partnership or trust, shall be organized and
validly existing under the laws of the United States, any State
thereof or the District of Columbia and shall expressly assume, by a
supplemental Indenture executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and any premium and interest on all the Debt Securities
and the performance or observance of every covenant of the Indenture
on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction
and treating any indebtedness which becomes an obligation of the
Company or any Subsidiary as a result of such transaction as having
been incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing; and
(3) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the
Company would become subject to a mortgage, pledge, lien, security
interest or other encumbrance which would not be permitted by the
Indenture, the Company or such successor person, as the case may be,
shall take such steps as shall be necessary effectively to secure the
Debt Securities equally and ratably with (or prior to) all
indebtedness secured thereby.
Events of Default and Remedies
The Indentures will define "Events of Default" with respect to a
series of Debt Securities as being any one of the following events:
(1) default in the payment of any interest upon any Debt
Security of that series when it becomes due and payable, and the
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any
premium on any Debt Security of that series at its maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Debt Security of that series; or
<PAGE> 18
(4) default in the performance, or breach, of any covenant
or warranty of the Company in the Indenture (other than a covenant or
warranty included in the Indenture solely for the benefit of any
series of Debt Securities other than that series), and the continuance
of such default or breach for 60 days after written notice has been
given to the Company by the Trustee or to the Company and the Trustee
by the holders of at least 25% in principal amount of the outstanding
Debt Securities of that series, as provided in the Indenture; or
(5) a default with respect to any indebtedness for money
borrowed by the Company or any Restricted Subsidiary (including a
default with respect to Debt Securities of any series other than that
series) having an aggregate principal amount outstanding at the time
of such default of at least $10,000,000, or under any mortgage,
indenture or instrument (including the Indenture) under which there
may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company or any Restricted
Subsidiary having an aggregate principal amount outstanding at the
time of such default of at least $10,000,000, whether such
indebtedness now exists or is hereafter created, which default (A)
shall constitute a failure to pay any portion of the principal of such
indebtedness when due and payable after the expiration of any
applicable grace period with respect thereto, or (B) shall have
resulted in the acceleration of such indebtedness, if, in the case of
clause (A), such indebtedness has not been discharged or, in the case
of clause (B), such indebtedness has not been discharged or such
acceleration has not been rescinded or annulled, in each case within
10 days after written notice has been given to the Company by the
Trustee or to the Company and the Trustee by the holders of at least
25% in principal amount of the outstanding Debt Securities of that
series, as provided in the Indenture; or
(6) certain voluntary or involuntary events of
bankruptcy, insolvency or reorganization in respect of the Company; or
(7) any other events as may be provided with respect to
Debt Securities of that series.
An Event of Default with respect to one series of Debt Securities is
not necessarily an Event of Default for another series.
If an Event of Default with respect to Debt Securities of any series
at the time outstanding occurs and is continuing (other than an Event of
Default described under clause (6) above), then in every such case the Trustee
or the holders of not less than 25% in principal amount of the outstanding Debt
Securities of that series may declare the principal amount of all the Debt
Securities of that series (or, if any Debt Securities of that series are
Original Issue Discount Securities, such portion of the principal amount of
such Debt Securities as may be specified by the terms thereof) to be due and
payable, by written notice to the Company (and to the Trustee if given by
holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. In the case of an Event of
Default specified under clause (6) above with respect to Debt Securities of any
series at the time outstanding, the principal amount of all the Debt Securities
of such series (or, in the case of Original Issue Discount Securities, such
portion of the principal amount of such Debt Securities as may be specified by
the terms thereof) shall automatically, and without any declaration or other
<PAGE> 19
action on the part of the Trustee or any holder, become immediately due and
payable.
At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee, the holders of a
majority in principal amount of the outstanding Debt Securities of that series,
by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if: (1) the Company has paid or deposited
with the Trustee a sum sufficient to pay (A) all overdue interest on all Debt
Securities of that series, (B) the principal of (and premium, if any, on) any
Debt Securities of that series which has become due otherwise than by such
acceleration and any interest thereon at the rate prescribed in such Debt
Securities, (C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate prescribed in such Debt Securities, and (D)
all sums payable by the Company to the Trustee under the Indenture; and (2) all
Events of Default with respect to Debt Securities of that series, other than
the non-payment of the principal (and premium, if any, on) of Debt Securities
of that series which has become due solely by such acceleration, have been
cured or waived.
The holders of a majority in principal amount of the outstanding Debt
Securities of a series by notice to the Trustee may on behalf of all holders of
Debt Securities of such series waive any existing default or Event of Default
under the Indenture, except (i) a default in the payment of any interest or
premium on, or the principal of such Debt Securities, or (ii) a default in
respect of a covenant or provision of the Indenture which under the terms
thereof may not be modified or amended without the consent of the holder of
each outstanding Debt Security of such series affected.
Modification of the Indenture
Each Indenture will provide that, with certain exceptions, the
Indenture, the rights and obligations of the Company, and the rights of the
holders of the Debt Securities issued thereunder may be modified by the Company
and the Trustee with the consent of the holders of a majority in aggregate
principal amount of outstanding Debt Securities of a series directly affected
by such modification; provided, however, that, without the consent of each
holder of such Debt Securities affected thereby, no such modification may (a)
reduce the percentage in principal amount of Debt Securities of any series
whose holders must consent to an amendment or waiver, (b) reduce the rate of or
change the time for payment of interest on any Debt Security, (c) reduce the
principal of or change the stated maturity of any Debt Security, (d) reduce the
amount of principal of any Original Issue Discount Security or any other Debt
Security that would be due and payable upon a declaration of acceleration
thereof, (e) reduce the premium payable upon the redemption of any Debt
Security or change the time at which any Debt Security may or shall be
redeemed, (f) change the currency in which, or the place or places where,
principal of and any premium and interest on any Debt Security is payable, (g)
modify the provisions of the Subordinated Indenture with respect to the
subordination of the Subordinated Debt Securities in a manner adverse to the
holders thereof, or (h) make any change in the provisions of the Indenture
relating to waivers of defaults or amendments that require unanimous consent.
<PAGE> 20
Satisfaction and Discharge of the Indenture; Defeasance
The Indentures shall generally cease to be of any further effect with
respect to a series of Debt Securities if (a) the Company has delivered to the
Trustee for cancellation all Debt Securities of such series (with certain
limited exceptions) or (b) all Debt Securities of such series not theretofore
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be
called for redemption within one year, and the Company shall have deposited
with the Trustee as trust funds the entire amount sufficient to pay at maturity
or upon redemption, as the case may be, all such Debt Securities (and if, in
either case, the Company shall also pay or cause to be paid all other sums
payable under the Indentures by the Company).
In addition, the Company shall have a defeasance option (pursuant to
which it may terminate, with respect to the Debt Securities of a particular
series, all of its obligations under such Debt Securities and the Indenture
with respect to such Debt Securities) and a covenant defeasance option
(pursuant to which it may terminate, with respect to the Debt Securities of a
particular series, its obligations with respect to such Debt Securities under
certain specified covenants contained in the Indenture). If the Company
exercises its defeasance option with respect to a series of Debt Securities,
Payment of such Debt Securities may not be accelerated because of any Event of
Default. If the Company exercises its covenant defeasance option with respect
to a series of Debt Securities, payment of such Debt Securities may not be
accelerated because of an Event of Default related to the specified covenants.
The Company may exercise its defeasance option or its covenant
defeasance option with respect to the Debt Securities of a series only if (a)
the Company irrevocably deposits in trust with the Trustee, in the case of Debt
Securities payable in United States currency, cash or U.S. Government
Obligations (as defined in the Indentures), and, in the case of Debt Securities
payable in a currency other than United States currency, funds in such
currency, for the payment of any principal, premium, and interest with respect
to such Debt Securities to maturity or redemption, as the case may be, (b) the
Company delivers to the Trustee a certificate from a nationally recognized firm
of independent accountants expressing their opinion that the payments of
principal and interest when due and without reinvestment on any deposited U.S.
Government Obligations plus any deposited money without investment will provide
cash at such times and in such amounts as will be sufficient to pay any
principal, premium, and interest when due with respect to all the Debt
Securities of such series to maturity or redemption, as the case may be, (c) 90
days pass after the deposit is made and during the 90-day period no default
described in clause (6) under "Description of Debt Securities--Events of
Default and Remedies" above with respect to the Company occurs that is
continuing at the end of such period, (d) the deposit does not constitute a
default under any other material agreement binding on the Company and, in the
case of Subordinated Debt Securities, is not prohibited by the provisions of
the Indenture relating to subordination, (e) the Company delivers to the
Trustee an opinion of counsel to the effect that the trust resulting from the
deposit does not constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940, (f) the Company shall have delivered
to the Trustee an opinion of counsel addressing certain federal income tax
matters relating to the defeasance, (g) the Company delivers to the Trustee an
officers' certificate and an opinion of counsel, each stating that all
conditions precedent to the defeasance and discharge of the Debt Securities of
such series as contemplated by the Indenture have been complied with, (h) the
Company shall have delivered to the Trustee an officers' certificate stating
<PAGE> 21
that the Debt Securities, if listed on a national exchange, will be delisted as
a result of such deposit, and (i) the defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act.
The Trustee shall hold in trust cash or U.S. Government Obligations
deposited with it as described above and shall apply the deposited cash and the
proceeds from any deposited U.S. Government Obligations to the payment of any
principal, premium, and interest with respect to the Debt Securities of the
defeased series. In the case of Subordinated Debt Securities, the money and
U.S. Government Obligations so held in trust will not be subject to the
subordination provisions of the Indenture.
The Trustee
The Company may appoint a separate Trustee for any series of Debt
Securities. As used herein in the description of a series of Debt Securities,
the term "Trustee" refers to the Trustee appointed with respect to such series
of Debt Securities. The Company may maintain banking and other commercial
relationships with the Trustee and its affiliates in the ordinary course of
business, and the Trustee may own Debt Securities.
DESCRIPTION OF CAPITAL STOCK
The following description of the capital stock of the Company does not
purport to be complete or to give full effect to the terms of the provisions of
statutory or common law and is subject to, and qualified in its entirety by
reference to, the Company's Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), the Company's Bylaws, and the Rights Agreement
(as defined below), all of which are filed or incorporated by reference as
exhibits to the Registration Statement of which this Prospectus is a part.
Common Stock
The Company's Certificate of Incorporation authorizes the issuance of
100,000,000 shares of Common Stock, par value $1.00 per share. As of May 26,
1995, there were 22,087,490 shares of Common Stock outstanding, 5,466,742
shares held in the Company's treasury, and 1,450,286 shares reserved for
issuance under the Company's 1982, 1986 and 1992 stock option plans. As of
such date, there were also outstanding 22,087,490 Rights to purchase Common
Stock. See "Description of Capital Stock--Certain Provisions of the Certificate
of Incorporation and Bylaws--Common Stock Purchase Rights" below.
Subject to the rights of the holders of any Preferred Stock, each
holder of Common Stock on the applicable record date is entitled to receive
such dividends as may be declared by the Board of Directors out of funds
legally available therefor, and, in the event of liquidation, to share pro rata
in any distribution of the Company's assets after payment of liabilities. Each
holder of Common Stock is entitled to one vote for each share held of record on
the applicable record date on all matters presented to a vote of stockholders.
The outstanding Common Stock is fully paid and non-assessable.
<PAGE> 22
Preferred Stock
All of the shares of Preferred Stock currently authorized by the
Company's Certificate of Incorporation have been issued and subsequently
redeemed, and cannot be reissued. The Company's Certificate of Incorporation
currently does not authorize the issuance of any additional shares of Preferred
Stock. Accordingly, the Board of Directors of the Company has adopted, subject
to stockholder approval, an amendment to the Certificate of Incorporation to
authorize the issuance of up to 10,000,000 shares of Preferred Stock in one or
more series and to authorize the Board of Directors, without further
stockholder action, to designate one or more series of Preferred Stock with
such terms as the Board may determine (the "Amendment"). However, the holders
of shares of Preferred Stock will not be entitled to more than one vote per
share, when voting as a class with the holders of shares of Common Stock. The
adoption of the Amendment requires the affirmative vote of the holders of a
majority of the outstanding shares of the Company's Common Stock. Management
will propose the Amendment at the next annual meeting of stockholders of the
Company, which is scheduled to be held on June 14, 1995. The issuance by the
Company of any shares of Preferred Stock pursuant to a Prospectus Supplement is
subject to the adoption of the Amendment by the Company's stockholders.
Certain Provisions of the Certificate of Incorporation and Bylaws
The following summary of certain provisions of the Company's
Certificate of Incorporation and Bylaws does not purport to be complete and is
subject to, and qualified in its entirety by reference to, the Certificate of
Incorporation and the Bylaws which are filed or incorporated by reference as
exhibits to the Registration Statement of which this Prospectus is a part.
Fair Price Provisions
The Company's Certificate of Incorporation requires approval by at
least 80% of the Company's outstanding voting stock for mergers and certain
other corporate transactions ("Business Combinations") that involve a
beneficial owner of 20% or more of the voting stock of the Company (an
"Interested Shareholder"), unless the transaction has been approved by a
majority of certain directors (the "Disinterested Directors") or certain fair
price criteria and procedural requirements are satisfied. These provisions of
the Certificate of Incorporation may be amended only by the vote of the holders
of 80% or more of the voting stock of the Company.
A "Disinterested Director" is any member of the Board of Directors who
is not an affiliate or associate of an Interested Shareholder and was or
becomes a director prior to the time that the Interested Shareholder became an
Interested Shareholder, was a director on March 6, 1985 or is elected or
recommended for election by the stockholders by a majority of the then
Disinterested Directors.
The fair price criteria require that in the event of a Business
Combination in which cash or other consideration would be paid to the Company's
stockholders, (1) the consideration to be received by the stockholders be
either cash or the same type of consideration used by the Interested
Shareholder to acquire the largest portion of his shares, and (2) the fair
market value of such consideration to be received per share of Common Stock be
<PAGE> 23
not less than the highest of the following, subject to price adjustments for
stock splits and dividends: (a) the highest per share price paid by the
Interested Shareholder in acquiring any Common Stock of the Company in either
(i) the two-year period prior to the first public announcement of such proposed
Business Combination, or (ii) the transaction in which such Interested
Shareholder became an Interested Shareholder, whichever is higher, or (b) the
fair market value of such shares on the date of the first public announcement
of such proposed Business Combination, or the date on which the Interested
Shareholder became an Interested Shareholder, whichever is higher.
The fair price provisions also require that the aggregate amount of
cash and fair market value of other consideration to be received by holders of
shares of voting stock other than Common Stock shall be the highest of the
following, subject to price adjustments for stock splits and dividends:
(1) the highest per share price paid by the Interested Shareholder in acquiring
such voting stock in the two-year period prior to the first public announcement
of the proposed Business Combination, or in the transaction in which such
Interested Shareholder became an Interested Shareholder, whichever is higher,
(2) the highest preferential liquidation, dissolution or winding up amount per
share to which such voting shares are entitled, and (3) the fair market value
of such shares on the date of the first public announcement of such proposed
Business Combination.
The procedural requirements would not be satisfied if, after an
Interested Shareholder became an Interested Shareholder, (1) the Company failed
to pay any dividend on its Preferred Stock or reduced the annual rate of
dividends paid on its Common Stock (except as necessary to reflect any
subdivision of the Common Stock) or failed to increase the annual rate of
dividends as necessary to reflect any reclassification recapitalization,
reorganization or similar transaction having the effect of reducing the number
of outstanding shares of Common Stock (in each case unless approved by a
majority of the Disinterested Directors), (2) the Interested Shareholder became
the beneficial owner of any additional shares of voting stock of the Company,
or (3) the Interested Shareholder received the benefit of any financial
assistance or tax advantage provided by the Company not shared proportionately
by all stockholders. In addition, the proposed Business Combination would have
to be described in a proxy information statement.
Common Stock Purchase Rights
On January 26, 1988, the Board of Directors declared a dividend of one
right ("Right") for each outstanding share of Common Stock of the Company. The
dividend was payable on February 12, 1988, to the stockholders of record at the
close of business on that date. In addition, the Board authorized and directed
the issuance of one Right (subject to adjustment) with respect to each share of
Common Stock issued prior to the earlier of the Distribution Date, as
hereinafter defined, and the redemption or expiration of the Rights. The
Rights were issued under a rights agreement dated January 26, 1988 by and
between the Company and Boatmen's Trust Company (as successor Rights Agent to
Mellon Securities Trust Company), as amended November 30, 1989 and
September 29, 1992 (the "Rights Agreement"). The Rights Agreement is filed or
incorporated by reference as an exhibit to the Registration Statement of which
this Prospectus is a part. This summary does not purport to be complete and is
subject to, and qualified in its entirety by reference to, the Rights
Agreement.
<PAGE> 24
Each Right, when exercisable, represents the right to purchase from
the Company one share of Common Stock at an exercise price of $93 per share
(the "Exercise Price"), subject to anti-dilution adjustments. Currently, the
Rights are attached to all Common Stock certificates representing outstanding
shares. Until the earlier to occur of (i) a public announcement that, without
the prior consent of the Company, a person or group of affiliated or associated
persons (an "Acquiring Person") has acquired, or obtained the right to acquire,
beneficial ownership of securities having 50% or more of the voting power of
all outstanding voting securities of the Company, or (ii) ten days (unless such
date is extended by the Board of Directors) following the commencement of (or a
public announcement of an intention to make) a tender offer or exchange offer
which would result in any person or group of related persons becoming an
Acquiring Person, without the prior consent of the Company (the earlier of such
dates being called the "Distribution Date"), the Rights will be evidenced by
the outstanding Common Stock certificates. The Rights Agreement provides that,
until the Distribution Date, the Rights will be transferred with and only with
Common Stock certificates. Until the Distribution Date (or earlier redemption
or expiration of the Rights), new Common Stock certificates issued upon
transfer or new issuance of Common Stock will contain a notation incorporating
the Rights Agreement by reference. Until the Distribution Date (or earlier
redemption or expiration of the Rights), the surrender for transfer of any
certificates for Common Stock will also constitute the transfer of the Rights
associated with the Common Stock represented by such certificate. As soon as
practicable following the Distribution Date, separate certificates evidencing
the Rights ("Rights Certificates") will be mailed to holders of record of the
Common Stock as of the close of business on the Distribution Date, and the
separate Rights Certificates alone will evidence the Rights.
The Rights will expire on the earliest of (i) January 26, 1998,
(ii) the consummation of a merger transaction with a person or group who
acquired Common Stock pursuant to a Permitted Offer (as defined below), and is
offering in the merger the same price per share and form of consideration paid
in the Permitted Offer, or (iii) the redemption of the Rights by the Company as
described below.
The Exercise Price payable, and the number of shares of Common Stock
or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of, the
Common Stock, (ii) upon the grant to holders of the Common Stock of certain
rights or warrants to subscribe for Common Stock, certain convertible
securities or securities having the same or more favorable rights, privileges
and preferences as the Common Stock at less than the current market price of
the Common Stock or (iii) upon the distribution to holders of the Common Stock
of evidences of indebtedness or assets (excluding regular quarterly cash
dividends out of earnings or retained earnings) or of subscription rights or
warrants (other than those referred to above).
In the event that, after the first date of public announcement by the
Company or an Acquiring Person that an Acquiring Person has become such, the
Company is involved in a merger or other business combination transaction in
which the Common Stock is exchanged or changed, or 50% or more of the Company's
assets or earning power are sold (in one transaction or a series of
transactions), proper provision shall be made so that each holder of a Right
shall thereafter have the right to receive, upon the exercise thereof at the
then current Exercise Price of the Right, that number of shares of common stock
of the acquiring company (or, in the event there is more than one acquiring
company, the acquiring company receiving the greatest portion of the assets or
<PAGE> 25
earning power transferred) which at the time of such transaction would have a
market value of two times the Exercise Price of the Right (such right being
called the "Merger Right"). In the event that a person becomes the beneficial
owner of securities having 50% or more of the voting power of all then
outstanding voting securities of the Company (unless pursuant to a tender offer
or exchange offer for all outstanding shares of Common Stock at a price and on
terms determined by at least a majority of the members of the Board of
Directors to be both adequate and otherwise in the best interests of the
Company and its stockholders (a "Permitted Offer")), proper provision shall be
made so that each holder of a Right will for a 60 day period thereafter have
the right to receive upon exercise that number of shares of Common Stock having
a market value of two times the Exercise Price of the Right, subject to the
availability of a sufficient number of authorized but unissued shares (such
right being called the "Subscription Right"). The holder of a Right will
continue to have the Merger Right whether or not such holder exercises the
Subscription Right. Upon the occurrence of any of the events giving rise to
the exercisability of the Subscription Right or the Merger Right, any Rights
that are or were at any time owned by an Acquiring Person engaging in any of
such transactions or receiving the benefits thereof on or after the time the
Acquiring Person became such shall become void insofar as they relate to the
Subscription Right or the Merger Right.
With certain exceptions, no adjustments in the Exercise Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Exercise Price. No fractions of shares will be issued and, in lieu
thereof, an adjustment in cash will be made based on the market price of the
Common Stock on the last trading date prior to the date of exercise.
At any time prior to the earlier to occur of (i) a person becoming an
Acquiring Person or (ii) the expiration of the Rights, the Company may redeem
the Rights in whole, but not in part, at a price of $.05 per Right (the
"Redemption Price"), which redemption shall be effective upon the action of the
Board of Directors. Additionally, the Company may thereafter redeem the then
outstanding Rights in whole, but not in part, at the Redemption Price provided
that such redemption is incidental to a merger or other business combination
transaction or series of transactions involving the Company but not involving
an Acquiring Person or any person who was an Acquiring Person or following an
event giving rise to, and the expiration of the exercise period for, the
Subscription Right if and for as long as an Acquiring Person beneficially owns
securities representing less than 50% of the voting power of the Company's
voting securities. The redemption of Rights described in the preceding
sentence shall be effective only as of such time when the Subscription Right is
not exercisable, and in any event, only after 10 business days prior notice.
Upon the effective date of the redemption of the Rights, the right to exercise
the Rights will terminate and the only right of the holders of Rights will be
to receive the Redemption Price.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the
right to vote or to receive dividends.
If the Amendment to the Company's Certificate is adopted (see
"Description of Capital Stock--Preferred Stock" above), the ability of the
Board to issue shares of Preferred Stock could make more difficult or
discourage an attempt to acquire control of the Company by means of a merger,
tender offer, proxy contest, or other means, and increase the Board's ability
to continue then current management. For example, subject to the Preferred
Stock voting limitations contained in the Amendment, shares of Preferred Stock
<PAGE> 26
could be used to create voting impediments for, or to dilute the stock
ownership of, persons seeking to gain control of the Company. Shares of
Preferred Stock could also be sold to purchasers opposing such action. In
addition, the Board of Directors could authorize the holders of a series of
Preferred Stock to vote either separately as a class or with the holders of the
Company's common stock, with respect to any merger or sale of assets of the
Company or any other extraordinary corporate transaction. However, the Company
is not considering the use of preferred stock for such purposes and is not
aware of any present effort by any party to accumulate the Company's securities
for the purpose of gaining control of the Company. In the Company's Proxy
Statement for its 1995 Annual Meeting of Stockholders, the Board and management
of the Company represented that, without the prior approval of the common
stockholders, preferred stock will not be used for any anti-takeover purpose,
including, without limitation, to implement any stockholders' rights plan or
with features intended to make any attempted acquisition of Company more
difficult or costly.
The Company's By-laws currently contain provisions that could have an
anti-takeover effect. The By-Laws require 90 days advance notice in order for
a stockholder to nominate a person for election as a director at an annual
meeting and 60 days advance notice in order for a stockholder to bring other
business before a stockholders' meeting. The By-Laws also permit only the
Chairman, the President and the Board of Directors to call special meetings of
stockholders, unless otherwise required by law.
Certain Anti-Takeover Provisions of Delaware Law
The Company is a Delaware corporation and is subject to Section 203 of
the Delaware General Corporation Law. In general, Section 203 prevents an
"interested stockholder" (defined generally as a person owning 15% or more of
the Company's outstanding voting stock) from engaging in a "business
combination" (as defined in Section 203) with the Company (or its majority-
owned subsidiaries) for three years following the date such person became an
interested stockholder, unless: (i) before such person became an interested
stockholder, the Company's Board of Directors approved the transaction in which
the interested stockholder became an interested stockholder or approved the
business combination; (ii) upon consummation of the transaction that resulted
in the interested stockholder becoming an interested stockholder, the
interested stockholder owns at least 85% of the Company's voting stock
outstanding at the time the transaction commenced (excluding stock held by
directors who are also officers of the Company and by employee stock plans that
do not provide employees with the rights to determine confidentially whether
shares held subject to the plan will be tendered in a tender or exchange
offer); or (iii) following the transaction in which such person became an
interested stockholder, the business combination is approved by the Company's
Board of Directors and approved at a meeting of stockholders by the affirmative
vote of the holders of at least two-thirds of the Company's outstanding voting
stock not owned by the interested stockholder. Under Section 203, the
restrictions described above also do not apply to certain business combinations
proposed by an interested stockholder following the earlier of the announcement
or notification of one of certain extraordinary transactions involving the
Company and a person who had not been an interested stockholder during the
previous three years or who became an interested stockholder with the approval
of a majority of the Company's directors, if such extraordinary transaction is
approved or not opposed by a majority of the directors who were directors prior
to any person becoming an interested stockholder during the previous three
<PAGE> 27
years or were recommended for election or elected to succeed such directors by
a majority of such directors.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of
certain provisions of the Deposit Agreement (as defined below) and of the
Depositary Shares (as defined below) and Depositary Receipts (as defined below)
does not purport to be complete and is subject to and qualified in its entirety
by reference to the forms of Deposit Agreement and Depositary Receipts relating
to each series of Preferred Stock that will be filed with the SEC in connection
with the offering of such series of Preferred Stock.
General
The Company may, at its option, elect to offer fractional interests in
shares of Preferred Stock, rather than full shares of Preferred Stock. In the
event such option is exercised, the Company will provide for the issuance by a
depositary to the public of receipts for depositary shares ("Depositary
Shares"), each of which will represent a specified fractional interest in a
share of a particular series of Preferred Stock (which will be set forth in the
Prospectus Supplement relating to a particular series of Preferred Stock).
The shares of any series of Preferred Stock underlying the Depositary
Shares will be deposited under a separate Deposit Agreement (the "Deposit
Agreement") between the Company and a bank or trust company selected by the
Company having its principal office in the United States and having a combined
capital and surplus of at least $50 million. The Prospectus Supplement
relating to a series of Depositary Shares will set forth the name and address
of the depositary (the "Depositary") with respect to such Depositary Shares.
Subject to the terms of the Deposit Agreement, each owner of Depositary Shares
will be entitled, in proportion to the applicable fractional interests in
shares of Preferred Stock underlying such Depositary Shares, to all the rights
and preferences of the Preferred Stock underlying such Depositary Shares
(including dividend, voting, redemption, conversion, and liquidation rights).
The Depositary Shares will be evidenced by Depositary receipts issued
pursuant to the Deposit Agreement ("Depositary Receipts"). Depositary Receipts
will be distributed to those persons purchasing the fractional interests in
shares of the related series of Preferred Stock in accordance with the terms of
the offering described in the related Prospectus Supplement.
The Prospectus Supplement relating to any Depositary Shares will
describe any material United States federal income tax consequences applicable
to such Depositary Shares.
Dividends and Other Distributions
The Depositary will distribute all cash dividends or other cash
distributions received with respect to Preferred Stock to the record holders of
Depositary Shares relating to such Preferred Stock in proportion to the numbers
of such Depositary Shares owned by such holders on the relevant record date.
The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction
of one cent, and the balance not so distributed shall be added to and treated
<PAGE> 28
as part of the next sum received by the Depositary for distribution to record
holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the 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 Preferred Stock shall be made available to the holders of
Depositary Shares.
Redemption of Depositary Shares
If a series of the Preferred Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of the Preferred Stock held by the Depositary. The Depositary
shall mail notice of redemption not less than 30 and not more than 60 days
prior to the date fixed for redemption to the record holders of the Depositary
Shares to be so redeemed at their respective addresses appearing in the
Depositary's books. The redemption price per Depositary Share will be equal to
the applicable fraction of the redemption price per share payable with respect
to such series of the Preferred Stock. Whenever the Company redeems shares of
Preferred Stock held by the Depositary, the Depositary will redeem as of the
same redemption date the number of Depositary Shares relating to shares of
Preferred Stock so redeemed. 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 as may be determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called
for redemption will no longer be outstanding and all rights of the holders of
the Depositary Shares will cease, except the right to receive the money,
securities, or other property payable upon such redemption and any money,
securities, or other property to which the holders of such Depositary Shares
were entitled upon such redemption upon surrender to the Depositary of the
Depositary Receipts evidencing such Depositary Shares.
Conversion or Exchange
Whenever the Company converts, pursuant to the terms of the Preferred
Stock, all of the shares of a particular series of Preferred Stock held by the
Depositary into other Preferred Stock or Common Stock or exchanges all such
shares for securities of another issuer, the Depositary will convert or
exchange as of the same date all Depositary Shares representing the shares of
the Preferred Stock so converted or exchanged, provided that the Company shall
have deposited with the Depositary the other Preferred Stock, Common Stock, or
other securities into or for which all such shares of Preferred Stock are to be
converted or exchanged. The exchange rate per Depositary Share shall be equal
to the exchange rate per share of Preferred Stock multiplied by the fraction of
a share of Preferred Stock represented by one Depositary Share, plus all money
and other property, if any, represented by such Depositary Share, including all
amounts paid by the Company in respect of dividends which on the exchange date
<PAGE> 29
have accrued on the shares of Preferred Stock to be so converted or exchanged
and have not theretofore been paid.
The Depositary Shares, as such, are not convertible or exchangeable
into other Preferred Stock, Common Stock, securities of another issuer, or any
other securities or property of the Company. Nevertheless, if so specified in
the applicable Prospectus Supplement, the Depositary Receipts may be
surrendered by holders thereof to the Depositary with written instructions to
the Depositary to instruct the Company to cause conversion of the Preferred
Stock represented by the Depositary Shares evidenced by such receipts into
other shares of Preferred Stock or Common Stock of the Company or exchange of
such Preferred Stock for securities of another issuer, as the case may be, and
the Company has agreed that upon receipt of such instructions and any amounts
payable in respect thereof, it will cause the conversion or exchange thereof
utilizing the same procedures as those provided for delivery of Preferred Stock
to effect such conversion or exchange. If the Depositary Shares represented by
a Depositary Receipt are to be converted in part only, a new Depositary Receipt
or Receipts will be issued for any Depositary Shares not to be converted or
exchanged.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock are entitled to vote, the Depositary will mail the information
contained in such notice of meeting to the record holders of the Depositary
Shares relating to such Preferred Stock. Each record holder of such Depositary
Shares on the record date (which will be the same date as the record date for
the Preferred Stock) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the number of shares of Preferred
Stock underlying such holder's Depositary Shares. The Depositary will
endeavor, insofar as practicable, to vote the number of shares of Preferred
Stock underlying such Depositary Shares in accordance with such instructions,
and the Company will agree to take all action that may be deemed necessary by
the Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting shares of the Preferred Stock to the extent it does not
receive specific instructions from the holders of Depositary Shares
representing such Preferred Stock.
Amendment and Termination of Depositary 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 Depositary. However, any amendment that materially
and adversely alters the rights of the existing holders of Depositary Shares
will not be effective unless such amendment has been approved by the record
holders of at least a majority of the Depositary Shares then outstanding. The
Deposit Agreement may be terminated by the Company or the Depositary only if
(a) all outstanding Depositary Shares relating thereto have been redeemed or
(b) there has been a final distribution with respect to the Preferred Stock of
the relevant series in connection with any liquidation, dissolution, or winding
up of the Company and such distribution has been distributed to the holders of
the related Depositary Shares.
<PAGE> 30
Charges of Depositary
The Company will pay all transfer and other taxes and governmental
charges arising solely from the existence of the Depositary arrangements. The
Company will pay the charges of the Depositary in connection with the initial
deposit of the Preferred Stock and any redemption of the Preferred Stock.
Holders of Depositary Shares will pay transfer and other taxes and governmental
charges and such other charges as are expressly provided in the Deposit
Agreement to be for their accounts.
Resignation and Removal of Depositary
The 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
Depositary. Any such resignation or removal will take effect upon the
appointment of a successor depositary and its acceptance of such appointment.
Such successor depositary must be appointed within 60 days after delivery of
the notice of resignation or removal and must be a bank or trust company having
its principal office in the United States and having a combined capital and
surplus of at least $50 million.
Miscellaneous
The Depositary will forward to the holders of Depositary Shares all
reports and communications from the Company that are delivered to the
Depositary and that the Company is required to furnish to the holders of the
Preferred Stock.
Neither the 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 Depositary under the Deposit Agreement will be limited to
performance in good faith of their duties thereunder and they will not be
obligated to prosecute or defend any legal proceeding with respect to any
Depositary Shares or Preferred Stock unless satisfactory indemnity is
furnished. They may rely upon written advice of counsel or accountants, or
information provided by persons presenting Preferred Stock for deposit, holders
of Depositary Shares, or other persons believed to be competent and on
documents believed to be genuine.
DESCRIPTION OF WARRANTS
The Company may issue Warrants for the purchase of Debt Securities,
Preferred Stock, or Common Stock. Warrants may be issued independently or
together with Debt Securities, Preferred Stock, or Common Stock offered by any
Prospectus Supplement and may be attached to or separate from any such Offered
Securities. Each series of Warrants will be issued under a separate warrant
agreement (a "Warrant Agreement") to be entered into between the Company and a
bank or trust company, as warrant agent (the "Warrant Agent"). The Warrant
Agent will act solely as an agent of the Company in connection with the
Warrants and will not assume any obligation or relationship of agency or trust
for or with any holders or beneficial owners of Warrants. The following
summary of certain provisions of the Warrants does not purport to be complete
and is subject to, and qualified in its entirety by reference to, the
<PAGE> 31
provisions of the Warrant Agreement that will be filed with the SEC in
connection with the offering of such Warrants.
The Prospectus Supplement relating to a particular issue of Common
Stock Warrants, Preferred Stock Warrants, or Debt Warrants will describe the
terms of such Warrants, including the following: (a) the title of such
Warrants; (b) the offering price for such Warrants, if any; (c) the aggregate
number of such Warrants; (d) the designation and terms of the Common Stock,
Preferred Stock, or Debt Securities purchasable upon exercise of such Warrants;
(e) if applicable, the designation and terms of the Offered Securities with
which such Warrants are issued and the number of such Warrants issued with each
such Offered Security; (f) if applicable, the date from and after which such
Warrants and any Offered Securities issued therewith will be separately
transferable; (g) in the case of Common Stock Warrants or Preferred Stock
Warrants, the number of shares of Common Stock or Preferred Stock purchasable
upon exercise of a Warrant and the price at which such shares may be purchased
upon exercise (which price may be payable in cash, securities, or other
property); (h) in the case of Debt Warrants, the principal amount of Debt
Securities purchasable upon exercise of a Debt Warrant and the price at which
such principal amount of Debt Securities may be purchased upon exercise (which
price may be payable in cash, securities, or other property); (i) the date on
which the right to exercise such Warrants shall commence and the date on which
such right shall expire; (j) if applicable, the minimum or maximum amount of
such Warrants that may be exercised at any one time; (k) in the case of Debt
Warrants, whether the Warrants represented by the Debt Warrant certificates or
Debt Securities that may be issued upon exercise of the Debt Warrants will be
issued in registered form or in the form of global securities, and information
with respect to book-entry procedures, if any; (l) the currency or currency
units in which the offering price, if any, and the exercise price are payable;
(m) if applicable, a discussion of material federal income tax considerations;
(n) the anti-dilution provisions of such Warrants, if any; (o) the redemption
or call provisions, if any, applicable to such Warrants; and (p) any additional
terms of the Warrants, including terms, procedures, and limitations relating to
the exchange and exercise of such Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities in or outside the United
States through underwriters or dealers, directly to one or more purchasers, or
through agents. The Prospectus Supplement with respect to the Offered
Securities will set forth the terms of the offering of the Offered Securities,
including the name or names of any underwriters, dealers, or agents, the
purchase price of the Offered Securities and the proceeds to the Company from
such sale, any delayed delivery arrangements, any underwriting discounts and
other items constituting underwriters' compensation, the initial public
offering price, any discounts or concessions allowed or re-allowed or paid to
dealers, and any securities exchanges on which the Offered Securities may be
listed.
If underwriters are used in the sale, the Offered Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of
sale. The Offered Securities may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more firms acting as underwriters. The underwriter or
underwriters with respect to a particular underwritten offering of Offered
<PAGE> 32
Securities will be named in the Prospectus Supplement relating to such
offering, and if an underwriting syndicate is used, the managing underwriter or
underwriters will be set forth on the cover of such Prospectus Supplement.
Unless otherwise set forth in the Prospectus Supplement relating thereto, the
obligations of the underwriters or agents to purchase the Offered Securities
will be subject to conditions precedent and the underwriters will be obligated
to purchase all the Offered Securities if any are purchased. The initial
public offering price and any discounts or concessions allowed or re-allowed or
paid to dealers may be changed from time to time.
If dealers are used in the sale of Offered Securities with respect to
which this Prospectus is delivered, the Company will sell such Offered
Securities to the dealers as principals. The dealers may then resell such
Offered Securities to the public at varying prices to be determined by such
dealers at the time of resale. The names of the dealers and the terms of the
transaction will be set forth in the Prospectus Supplement relating thereto.
Offered Securities may be sold directly by the Company or through
agents designated by the Company from time to time at fixed prices, which may
be changed, or at varying prices determined at the time of sale. Any agent
involved in the offer or sale of the Offered Securities with respect to which
this Prospectus is delivered will be named, and any commissions payable by the
Company to such agent will be set forth, in the Prospectus Supplement relating
thereto. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of its appointment.
In connection with the sale of the Offered Securities, underwriters or
agents may receive compensation from the Company or from purchasers of Offered
Securities for whom they may act as agents in the form of discounts,
concessions, or commissions. Underwriters, agents, and dealers participating
in the distribution of the Offered Securities may be deemed to be underwriters,
and any discounts or commissions received by them from the Company and any
profit on the resale of the Offered Securities by them may be deemed to be
underwriting discounts or commissions under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will
authorize agents, underwriters, or dealers to solicit offers from certain types
of institutions to purchase Offered Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in
the future. 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.
Agents, dealers, and underwriters 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, or to
contribution with respect to payments that such agents, dealers, or
underwriters may be required to make with respect thereto. Agents, dealers,
and underwriters may be customers of, engage in transactions with, or perform
services for the Company in the ordinary course of business.
The Offered Securities may or may not be listed on a national
securities exchange. No assurances can be given that there will be a market
for the Offered Securities.
<PAGE> 33
LEGAL OPINIONS
Certain legal matters in connection with the Offered Securities will
be passed upon for the Company by Bryan Cave of St. Louis, Missouri and for any
underwriters or agents by a firm named in the Prospectus Supplement relating to
a particular issue of Offered Securities.
EXPERTS
The consolidated financial statements of the Company as of January 28,
1995 and January 29, 1994, and for each of the years in the three-year period
ended January 28, 1995, have been incorporated by reference herein in reliance
upon the report of Ernst & Young LLP, independent auditors, also incorporated
by reference herein, given on their authority as experts in accounting and
auditing.
<PAGE> 34
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14 - Other Expenses of Issuance and Distribution
The following table sets forth those expenses to be incurred by the
registrant, Edison Brothers Stores, Inc. (the "Company"), in connection with
the issuance and distribution of the securities being registered. Except for
the Securities and Exchange Commission registration fee, all amounts shown are
estimates.
</TABLE>
<TABLE>
<C> <C>
Securities and Exchange Commission registration fee.. $103,449
Accounting fees and expenses......................... 25,000
Legal fees and expenses.............................. 150,000
Blue Sky fees and expenses, including counsel fees... 20,000
Miscellaneous........................................ 101,551
--------
Total........................................ $400,000
========
</TABLE>
Item 15 - Indemnification of Directors and Officers
On July 22, 1986 the Company entered into an Indemnification Agreement
with each of its then incumbent directors. Similar agreements have been
entered into with newly-elected directors and will be entered into from time to
time with future directors. The Agreement provides for indemnification of
directors of the Company to the fullest extent permitted under Section 145 of
the Delaware General Corporation Law. Within certain limitations the Agreement
provides additional indemnification against judgments, penalties, expenses,
fines, and settlements incurred by the indemnitee while serving at the request
of the Company as a director, officer, employee, agent or trustee of another
corporation, partnership, joint venture, trust, or other enterprise.
Pursuant to Section 145 of the Delaware General Corporation Law, the
registrant generally has the power to indemnify its present and former
directors and officers against expenses and liabilities incurred by them in
connection with any suit to which they are, or are threatened to be made, a
party by reason of their serving in those positions so long as they acted in
good faith and in a manner they reasonably believed to be in, or not opposed
to, the best interests of the registrant, and with respect to any criminal
action, they had no reasonable cause to believe their conduct was unlawful.
With respect to suits by or in the right of the registrant, however,
indemnification is generally limited to attorneys' fees and other expenses and
is not available if the person is adjudged to be liable to the registrant
unless the court determines that indemnification is appropriate. The statute
expressly provides that the power to indemnify authorized thereby is not
exclusive of any rights granted under any by-law, agreement, vote of
stockholders or disinterested directors, or otherwise. The registrant also has
the power to purchase and maintain insurance for its directors and officers.
<PAGE> 35
Article Fourteenth of the Company's Certificate of Incorporation
provides that a director of the Company shall not be personally liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty
as a director, except for liability (i) for any breach of the director's duty
of loyalty to the Company or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law (which
relates to unlawful payment of dividends) or (iv) for any transaction from
which the director derived any improper personal benefit.
The preceding discussion of the registrant's Certificate of
Incorporation, Section 145 of the Delaware General Corporation Law, and the
Indemnification Agreements is not intended to be exhaustive and is qualified in
its entirety by the Restated Certificate of Incorporation, Section 145 of the
Delaware General Corporation Law, and the Indemnification Agreements.
Item 16 - Exhibits
1.1** Form of Underwriting Agreement for Debt Securities.
1.2* Form of Underwriting Agreement for Preferred Stock and/or
Depositary Shares (to be filed by post-effective amendment or
incorporated herein by reference prior to the issuance of
Preferred Stock and/or Depositary Shares).
1.3* Form of Underwriting Agreement for Common Stock (to be filed
by post-effective amendment or incorporated herein by
reference prior to the issuance of Common Stock).
1.4* Form of Underwriting Agreement for Warrants (to be filed by
post-effective amendment or incorporated herein by reference
prior to the issuance of Warrants).
3.1 Certificate of Incorporation, as amended (incorporated by
reference to Exhibit 3(a) to the Company's annual report on
Form 10-K for the year ended February 2, 1991, File 1-1394).
3.2 Bylaws, as amended (incorporated by reference to Exhibit 3(a)
to the Company's annual report on Form 10-K for the year ended
January 28, 1995, File 1-1394).
4.1 Rights Agreement dated as of January 26, 1988 between Edison
Brothers Stores, Inc. and Mellon Securities Trust Company, as
Rights Agent (incorporated by reference to Exhibit 1 to the
Company's current report on Form 8-K dated February 17, 1988,
File 1-1394).
4.2 Amendment to Rights Agreement dated as of November 30, 1989
(incorporated by reference to Exhibit 1 to the Company's
current report on Form 8-K dated December 11, 1989,
File 1-1394).
4.3 Second Amendment to Rights Agreement dated as of September 29,
1992, (incorporated by reference to Exhibit 1 to the Company's
current report on Form 8-K dated October 28, 1992,
File 1-1394).
<PAGE> 36
4.4 Note Agreements and Senior Notes dated March 1, 1993, between
Edison Brothers Stores, Inc. and a number of institutional
lenders relating to $150 million of unsecured debt
(incorporated by reference to Exhibit 4(b) to the Company's
annual report on Form 10-K for the year ended January 30,
1993, File 1-1394).
4.5 Amendment Agreement dated as of January 15, 1994, amending the
Note Agreements dated March 1, 1993 (incorporated by reference
to Exhibit 4(c) to the Company's annual report on Form 10-K
for the year ended January 29, 1994, File 1-1394).
4.6 Amendment Agreement dated as of February 1, 1994, amending the
Note Agreements dated March 1, 1993 (incorporated by reference
to Exhibit 4(c) to the Company's annual report on Form 10-K
for the year ended January 29, 1994, File 1-1394).
4.7 Amendment Agreement dated as of April 1, 1995 amending the
Note Agreements dated March 1, 1993 (incorporated by reference
to Exhibit 4(c) to the Company's annual report on Form 10-K
for the year ended January 28, 1995, File 1-1394).
4.8** Credit Agreement dated as of June 4, 1993 between Edison
Brothers Stores, Inc. and a number of financial institutions
relating to a $150 million revolving credit facility.
4.9** First Amendment to Credit Agreement dated as of January 24,
1994 amending the Credit Agreement dated June 4, 1993.
4.10** Second Amendment to Credit Agreement dated as of February 17,
1994 amending the Credit Agreement dated June 4, 1993.
4.11** Third Amendment to Credit Agreement dated as of March 29, 1995
amending the Credit Agreement dated June 4, 1993.
5** Opinion of Bryan Cave as to the legality of the securities to
be registered.
10.1 Form of Indemnification Agreement between the Company and each
of its directors was filed as Exhibit 10(b) to the Company's
annual report on Form 10-K for the year ended January 3, 1987
(File 1-1394), and is incorporated herein by reference.
10.2 Form of Termination Agreement entered into by the Company with
Alan D. Miller, Chairman of the Board, President and Chief
Executive Officer of the Company (incorporated by reference to
Exhibit 10(b) of the Company's annual report on Form 10-K for
the year ended January 28, 1995 (File 1-1394)).
10.3 Form of Termination Agreement entered into by the Company with
other executive officers of the Company was filed as Exhibit
10(b) to the Company's annual report on Form 10-K for the
year ended February 3, 1990 (file 1-1394), and is incorporated
herein by reference.
<PAGE> 37
10.4 The Edison Brothers Stores, Inc. 1992 Stock Option Plan, as
amended March 3, 1994, was filed as an Exhibit to the
Company's annual report on Form 10-K for the year ended
January 29, 1994, and is incorporated herein by reference.
10.5 The Edison Brothers Stores, Inc. 1986 Stock Option Plan, as
amended April 27, 1987 and March 3, 1994, was filed as an
Exhibit to the Company's annual report on Form 10-K for the
year ended January 29, 1994, and is incorporated herein by
reference.
10.6 The Edison Brothers Stores, Inc. 1982 Incentive Stock Option
Plan, as amended effective October 25, 1983, January 28, 1986
and March 3, 1986, is incorporated by reference from the
Company's Registration Statement on Form S-8 (No. 2-84838)
filed with the Commission.
10.7 Non-Qualified Retirement Plan for Outside Directors is
described under the caption "Election of Directors" in the
proxy statement for the Company's 1995 annual stockholders
meeting, which description is incorporated herein by
reference.
10.8** Form of Senior Indenture between the Company and Fleet Bank of
Massachusetts, N.A., as trustee.
10.9* Form of Subordinated Indenture between the Company and one or
more commercial banks to be named, as trustee.
10.10* Form of Senior Debt Security.
10.11* Form of Subordinated Debt Security.
10.12* Form of Deposit Agreement.
10.13* Form of Depositary Receipt.
10.14* Form of Warrant Agreement.
10.15* Form of Warrant Certificate.
10.16 Description of restricted stock grant by Edison Brothers
Stores, Inc. to Alan D. Miller, Chairman, President and Chief
Executive Officer.
12** Computation of Consolidated Ratios of Earnings to Fixed
Charges.
23.1 Consent of Ernst & Young LLP.
23.2** Consent of Bryan Cave (included in the opinion filed as
Exhibit 5 to this Registration Statement).
<PAGE> 38
24** Powers of Attorney of the Company.
25** Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of Fleet Bank of Massachusetts, N.A.,
as Trustee under the Senior Indenture.
- ---------------
* To be filed by amendment.
** Previously filed.
Item 17 - Undertakings
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(1) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the
"Securities Act");
(2) To reflect in the prospectus any facts or
events arising after the effective date of this 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 this
registration statement; and
(3) To include any material information with
respect to the plan of distribution not previously disclosed
in this registration statement or any material change to such
information in this registration statement;
provided, however, that clauses (1) and (2) above do not apply if the
information required to be included in a post-effective amendment by
those clauses is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act of 1934
("Exchange Act") that are incorporated by reference into this
registration statement;
(b) That, for the purpose of determining any liability
under the Securities Act, 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; and
(c) To remove from registration by means of a post-
effective amendment any of the securities being registered that remain
unsold at the termination of the offering.
<PAGE> 39
(d) That for purposes of determining any liability under
the Securities Act, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act ("Act") in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the registrant pursuant to the provisions described in Item 15 above or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer, or controlling persons 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 and will be governed by the final adjudication
of such issue.
<PAGE> 40
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of St. Louis, State of Missouri on the 6th day of
June 1995.
EDISON BROTHERS STORES, INC.
By /S/ DAVID B. COOPER, JR.
----------------------------------
David B. Cooper, Jr.
Executive Vice President,
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- -------------------------- ----------------------------------- --------------
Alan D. Miller * Chairman of the Board, President, June 6, 1995
- -------------------------- Chief Executive Officer and
Alan D. Miller Director (principal executive
officer)
/S/ DAVID B. COOPER, JR. Executive Vice President, Chief June 6, 1995
- -------------------------- Financial Officer and Director
David B. Cooper, Jr. (principal financial officer)
/S/ NORMAN GOLD Vice President and Corporate June 6, 1995
- -------------------------- Controller (chief accounting
Norman Gold officer)
Andrew E. Newman * Director June 6, 1995
- --------------------------
Andrew E. Newman
Martin Sneider * Director June 6, 1995
- --------------------------
Martin Sneider
Karl W. Michner * Senior Executive Vice President, June 6, 1995
- -------------------------- President of Menswear Group and
Karl W. Michner Director
Peter A. Edison * Senior Executive Vice President, June 6, 1995
- -------------------------- Director of Corporate Development
Peter A. Edison and Director
<PAGE> 41
Michael H. Freund * Executive Vice President- June 6, 1995
- -------------------------- Administration and Director
Michael H. Freund
/S/ ALAN A. SACHS Executive Vice President, General June 6, 1995
- -------------------------- Counsel, Secretary and Director
Alan A. Sachs
Julian I. Edison * Director June 6, 1995
- --------------------------
Julian I. Edison
- -------------------------- Director June __, 1995
Jane Evans
Eric P. Newman * Director June 6, 1995
- --------------------------
Eric P. Newman
- -------------------------- Director June __, 1995
Craig D. Schnuck
- -------------------------- Director June __, 1995
Robert W. Staley
*By /S/ ALAN A. SACHS
----------------------
Alan A. Sachs
Attorney-in-Fact
<PAGE> 42
INDEX TO EXHIBITS
Exhibit
Number Exhibit
- ------- --------------------------------------------------------------
1.1** Form of Underwriting Agreement for Debt Securities.
1.2* Form of Underwriting Agreement for Preferred Stock and/or
Depositary Shares (to be filed by post-effective amendment or
incorporated herein by reference prior to the issuance of
Preferred Stock and/or Depositary Shares).
1.3* Form of Underwriting Agreement for Common Stock (to be filed
by post-effective amendment or incorporated herein by
reference prior to the issuance of Common Stock).
1.4* Form of Underwriting Agreement for Warrants (to be filed by
post-effective amendment or incorporated herein by reference
prior to the issuance of Warrants).
3.1 Certificate of Incorporation, as amended (incorporated by
reference to Exhibit 3(a) to the Company's annual report on
Form 10-K for the year ended February 2, 1991, File 1-1394).
3.2 Bylaws, as amended (incorporated by reference to Exhibit 3(a)
to the Company's annual report on Form 10-K for the year ended
January 28, 1995, File 1-1394).
4.1 Rights Agreement dated as of January 26, 1988 between Edison
Brothers Stores, Inc. and Mellon Securities Trust Company, as
Rights Agent (incorporated by reference to Exhibit 1 to the
Company's current report on Form 8-K dated February 17, 1988,
File 1-1394).
4.2 Amendment to Rights Agreement dated as of November 30, 1989
(incorporated by reference to Exhibit 1 to the Company's
current report on Form 8-K dated December 11, 1989,
File 1-1394).
4.3 Second Amendment to Rights Agreement dated as of September 29,
1992 (incorporated by reference to Exhibit 1 to the Company's
current report on Form 8-K dated October 28, 1992,
File 1-1394).
4.4 Note Agreements and Senior Notes dated March 1, 1993, between
Edison Brothers Stores, Inc. and a number of institutional
lenders relating to $150 million of unsecured debt
(incorporated by reference to Exhibit 4(b) to the Company's
annual report on Form 10-K for the year ended January 30,
1993, File 1-1394).
4.5 Amendment Agreement dated as of January 15, 1994, amending the
Note Agreements dated March 1, 1993 (incorporated by reference
to Exhibit 4(c) to the Company's annual report on Form 10-K
for the year ended January 29, 1994, File 1-1394).
<PAGE> 43
Exhibit
Number Exhibit
- ------- --------------------------------------------------------------
4.6 Amendment Agreement dated as of February 1, 1994, amending the
Note Agreements dated March 1, 1993 (incorporated by reference
to Exhibit 4(c) to the Company's annual report on Form 10-K
for the year ended January 29, 1994, File 1-1394).
4.7 Amendment Agreement dated as of April 1, 1995 amending the
Note Agreements dated March 1, 1993 (incorporated by reference
to Exhibit 4(c) to the Company's annual report on Form 10-K
for the year ended January 28, 1995, File 1-1394).
4.8** Credit Agreement dated as of June 4, 1993 between Edison
Brothers Stores, Inc. and a number of financial institutions
relating to a $150 million revolving credit facility.
4.9** First Amendment to Credit Agreement dated as of January 24,
1994 amending the Credit Agreement dated June 4, 1993.
4.10** Second Amendment to Credit Agreement dated as of February 17,
1994 amending the Credit Agreement dated June 4, 1993.
4.11** Third Amendment to Credit Agreement dated as of March 29, 1995
amending the Credit Agreement dated June 4, 1993.
5** Opinion of Bryan Cave as to the legality of the securities to
be registered.
10.1 Form of Indemnification Agreement between the Company and each
of its directors was filed as Exhibit 10(b) to the Company's
annual report on Form 10-K for the year ended January 3, 1987
(file 1-1394), and is incorporated herein by reference.
10.2 Form of Termination Agreement entered into by the Company with
Alan D. Miller, Chairman of the Board, President and Chief
Executive Officer of the Company (incorporated by reference to
Exhibit 10(b) of the Company's annual report on Form 10-K for
the year ended January 28, 1995 (File 1-1394)).
10.3 Form of Termination Agreement entered into by the Company with
other executive officers of the Company was filed as Exhibit
10(b) to the Company's annual report on Form 10-K for the
year ended February 3, 1990 (file 1-1394), and is incorporated
herein by reference.
10.4 The Edison Brothers Stores, Inc. 1992 Stock Option Plan, as
amended March 3, 1994, was filed as an Exhibit to the
Company's annual report on Form 10-K for the year ended
January 29, 1994, and is incorporated herein by reference.
<PAGE> 44
Exhibit
Number Exhibit
- ------- --------------------------------------------------------------
10.5 The Edison Brothers Stores, Inc. 1986 Stock Option Plan, as
amended April 27, 1987 and March 3, 1994, was filed as an
Exhibit to the Company's annual report on Form 10-K for the
year ended January 29, 1994, and is incorporated herein by
reference.
10.6 The Edison Brothers Stores, Inc. 1982 Incentive Stock Option
Plan, as amended effective October 25, 1983, January 28, 1986
and March 3, 1986, is incorporated by reference from the
Company's Registration Statement on Form S-8 (No. 2-84838)
filed with the Commission.
10.7 Non-Qualified Retirement Plan for Outside Directors is
described under the caption "Election of Directors" in the
proxy statement for the Company's 1995 annual stockholders
meeting, which description is incorporated herein by
reference.
10.8** Form of Senior Indenture between the Company and Fleet Bank of
Massachusetts, N.A., as trustee.
10.9* Form of Subordinated Indenture between the Company and one or
more commercial banks to be named, as trustee.
10.10* Form of Senior Debt Security.
10.11* Form of Subordinated Debt Security.
10.12* Form of Deposit Agreement.
10.13* Form of Depositary Receipt.
10.14* Form of Warrant Agreement.
10.15* Form of Warrant Certificate.
10.16 Description of restricted stock grant by Edison Brothers
Stores, Inc. to Alan D. Miller, Chairman, President and Chief
Executive Officer.
12** Computation of Consolidated Ratios of Earnings to Fixed
Charges.
23.1 Consent of Ernst & Young LLP.
23.2** Consent of Bryan Cave (included in the opinion filed as Exhibit 5 to
this Registration Statement).
<PAGE> 45
Exhibit
Number Exhibit
- ------- --------------------------------------------------------------
24** Powers of Attorney of the Company.
25** Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of Fleet Bank of Massachusetts, N.A.
as Trustee under the Senior Indenture.
- ---------------
* To be filed by amendment.
** Previously filed.
<PAGE> 1
EXHIBIT 10.16
Description of a restricted stock grant by Edison Brothers Stores, Inc. to
Alan D. Miller, Chairman, President and Chief Executive Officer of the
Corporation.
The Corporation has granted to Alan D. Miller, Chairman, President and Chief
Executive Officer of the Corporation, 50,000 shares of the Corporation's common
stock, subject to certain restrictions (the "Restricted Shares"). The grant,
effected May 11, 1995, provides that one-fifth of the Restricted Shares shall
vest each year following the date of grant, provided that Mr. Miller is at that
time still employed by the Corporation. If Mr. Miller's employment terminates,
any Restricted Shares which have not yet vested are forfeited (except if the
termination is by reason of Mr. Miller's death or disability, in which event
all Restricted Shares immediately vest). The vesting schedule may be
accelerated at the discretion of the Board of Directors. Mr. Miller has full
dividend and voting rights with respect to the Restricted Shares but the shares
are not transferable prior to vesting.
The grant contains the customary provisions for appropriate adjustments in the
event of changes in the capitalization of the Corporation. The grant also
provides that if there is a potential change in control of the Corporation, all
Restricted Shares shall immediately vest. A "potential change in control" is
deemed to occur if, at any time during any twenty-four month period, the
membership of the Board of Directors of the Corporation is not at least two-
thirds constituted by (a) individuals who were directors at the beginning of
such period or (b) individuals whose election, or nomination for election by
the Corporation's stockholders, to the Board during such period was approved by
the vote of two-thirds of those directors then still in office who were
directors at the beginning of such period. However, changes in the Board of
Directors of the Corporation occurring as a result of a merger or similar
transaction approved by two-thirds of the Board would not be deemed to be a
"potential change in control" unless the third party involved had initially
commenced a non-negotiated offer.
The Restricted Shares were granted at no cost to Mr. Miller (other than
applicable taxes).
<PAGE> 1
EXHIBIT 23.1
Exhibit 23.1 - Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Edison Brothers
Stores, Inc. for the registration of debt and equity securities and to the
incorporation by reference therein of our report dated March 8, 1995, with
respect to the consolidated financial statements of Edison Brothers Stores,
Inc. incorporated by reference in its amended Annual Report (Form 10-K/A) for
the year ended January 28, 1995 filed with the Securities and Exchange
Commission.
/S/ ERNST & YOUNG LLP
St. Louis, Missouri
June 5, 1995
