<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
Form S-4
REGISTRATION STATEMENT
Under the
Securities Act of 1933
--------------
<TABLE>
<C> <S> <C> <C>
FEDERAL-MOGUL CORPORATION Michigan 3174 38-0533580
FEDERAL-MOGUL DUTCH HOLDINGS INC. Delaware 3174 38-3399272
FEDERAL-MOGUL GLOBAL INC. Delaware 3174 38-3399269
FEDERAL-MOGUL U.K. HOLDINGS INC. Delaware 3174 38-3399273
CARTER AUTOMOTIVE COMPANY, INC. Delaware 3174 43-1374271
FEDERAL-MOGUL VENTURE CORPORATION Nevada 3174 38-2938561
FEDERAL-MOGUL WORLD WIDE, INC. Michigan 3174 38-3010848
FEDERAL-MOGUL GLOBAL PROPERTIES, INC. Michigan 3174 38-3394578
FELT PRODUCTS MFG. CO. Delaware 3174 36-1065910
F-M UK HOLDING LIMITED United Kingdom 3174 Not Applicable
FEDERAL-MOGUL IGNITION COMPANY Delaware 3174 34-4203131
FEDERAL-MOGUL PRODUCTS, INC. Missouri 3174 43-1130207
FEDERAL-MOGUL AVIATION, INC. Delaware 3174 76-0554121
(State or other
jurisdiction
(Exact name of registrant as of incorporation or (Standard Industrial (I.R.S. Employer
specified in its charter) organization) Classification Code) Identification No.)
</TABLE>
26555 Northwestern Highway
Southfield, Michigan 48034
(248) 354-7700
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
--------------
David M. Sherbin
Associate General Counsel and
Secretary
Federal-Mogul Corporation
26555 Northwestern Highway
Southfield, Michigan 48034
(248) 354-7700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------
with a copy to:
Larry A. Barden, Esq.
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
(312) 853-7000
--------------
Approximate date of commencement of proposed sale of the securities to the
public: As soon as practicable after this registration statement becomes
effective.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [_]
If this form is filed to register additional securities for an offering
under Rule 462(b) 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 this form is a post-effective amendment filed under Rule 462(d) 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. [_]
<PAGE>
--------------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed
Proposed maximum
Amount maximum aggregate Amount of
Title of each class of to be offering price offering registration
securities to be registered registered per unit price(1) fee
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
7 3/8% Notes due 2006.......................... $400,000,000 N/A $400,000,000 $111,200
- -----------------------------------------------------------------------------------------------------------
7 1/2% Notes due 2009.......................... $600,000,000 N/A $600,000,000 $166,800
- -----------------------------------------------------------------------------------------------------------
Guarantee of Federal-Mogul Dutch Holdings
Inc.(3)....................................... N/A N/A N/A N/A(2)
- -----------------------------------------------------------------------------------------------------------
Guarantee of Federal-Mogul Global Inc.(3)...... N/A N/A N/A N/A(2)
- -----------------------------------------------------------------------------------------------------------
Guarantee of Federal-Mogul U.K. Holdings
Inc.(3)....................................... N/A N/A N/A N/A(2)
- -----------------------------------------------------------------------------------------------------------
Guarantee of Carter Automotive Company,
Inc.(3)....................................... N/A N/A N/A N/A(2)
- -----------------------------------------------------------------------------------------------------------
Guarantee of Federal Mogul Venture
Corporation(3)................................ N/A N/A N/A N/A(2)
- -----------------------------------------------------------------------------------------------------------
Guarantee of Federal-Mogul World Wide, Inc.(3). N/A N/A N/A N/A(2)
- -----------------------------------------------------------------------------------------------------------
Guarantee of Federal Mogul Global Properties,
Inc.(3)....................................... N/A N/A N/A N/A(2)
- -----------------------------------------------------------------------------------------------------------
Guarantee of Felt Products Mfg. Co.(3)......... N/A N/A N/A N/A(2)
- -----------------------------------------------------------------------------------------------------------
Guarantee of F-M UK Holding Limited(3)......... N/A N/A N/A N/A(2)
- -----------------------------------------------------------------------------------------------------------
Guarantee of Federal-Mogul Ignition Company(3). N/A N/A N/A N/A(2)
- -----------------------------------------------------------------------------------------------------------
Guarantee of Federal-Mogul Products, Inc.(3)... N/A N/A N/A N/A(2)
- -----------------------------------------------------------------------------------------------------------
Guarantee of Federal-Mogul Aviation, Inc.(3)... N/A N/A N/A N/A(2)
- -----------------------------------------------------------------------------------------------------------
Total.......................................... $1,000,000,000 N/A $1,000,000,000 $278,000
- -----------------------------------------------------------------------------------------------------------
</TABLE>
- -------------------------------------------------------------------------------
(1) Estimated solely for purpose of calculating the registration fee required
by Section 6(b) of the Securities Act of 1933 and computed pursuant to
Rule 457(f) under the Securities Act.
(2) Pursuant to Rule 457(n) under the Securities Act, no additional fee is
payable.
(3) Guarantees of the 7 3/8% Notes due 2006 and the 7 1/2% Notes due 2009
issued by the above-named subsidiaries of Federal Mogul. No separate
consideration will be received for the issuance of these guarantees.
--------------
The Co-Registrants hereby amend this registration statement on such date or
dates as may be necessary to delay its effective time until the Co-Registrants
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 SEC, acting pursuant to said
Section 8(a), may determine.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the SEC +
+is effective. This prospectus is not an offer to sell these securities and is +
+not soliciting an offer to buy these securities in any state where the offer +
+or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JUNE 30, 1999
PROSPECTUS
$1,000,000,000
Offer to Exchange
7 3/8% Notes due 2006
For Any and All Outstanding 7 3/8% Notes due 2006
and
7 1/2% Notes due 2009
For Any and All Outstanding 7 1/2% Notes due 2009
This prospectus (and accompanying letter of transmittal) relates to our
proposed offer to exchange up to $400,000,000 aggregate principal amount of new
7 3/8% notes due 2006 (the "New 7 3/8% Notes") for any and all outstanding 7
3/8% notes due 2006 and up to $600,000,000 aggregate principal amount of new 7
1/2% notes due 2009 (the "New 7 1/2% Notes" and together with the New 7 3/8%
Notes, the "New Notes"), for any and all outstanding 7 1/2% notes due 2009. The
7 3/8% notes due 2006 and the 7 1/2% notes due 2009 were issued in a private
offering on January 20, 1999 (the "Old Notes") and have certain transfer
restrictions. The New Notes will be freely transferable.
. The exchange offer expires 5:00 p.m., New York City time, on
, 1999, unless extended.
. The terms of the New Notes are substantially identical to the terms of the
Old Notes, except that the New Notes will be freely transferable and
issued free of any covenants regarding exchange and registration rights.
. All Old Notes that are validly tendered and not validly withdrawn will be
exchanged.
. Tenders of Old Notes may be withdrawn at any time prior to expiration of
the exchange offer.
. The exchange of Old Notes for New Notes will not be a taxable event for
United States federal income tax purposes.
. Holders of Old Notes do not have any appraisal or dissenters' rights in
connection with the exchange offer. Old Notes not exchanged in the
exchange offer will remain outstanding and be entitled to the benefits of
the indenture, but, except under certain circumstances, will have no
further exchange or registration rights under the registration rights
agreement.
. ""Affiliates'' of Federal-Mogul (within the meaning of the Securities Act
of 1933) may not participate in the exchange offer.
. All broker-dealers must comply with the registration and prospectus
delivery requirements of the Securities Act of 1933. See "Plan of
Distribution" beginning on page 48.
. We intend to apply for listing of the New Notes on the Luxembourg Stock
Exchange.
-----------
Please see "Risk Factors" beginning on page 10 for a discussion of certain
factors you should consider in connection with the exchange offer.
-----------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE NEW NOTES, OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
WE MAY AMEND OR SUPPLEMENT THIS PROSPECTUS FROM TIME TO TIME BY FILING
AMENDMENTS OR SUPPLEMENTS AS REQUIRED. YOU SHOULD READ THIS ENTIRE PROSPECTUS
(AND ACCOMPANYING LETTER OF TRANSMITTAL AND RELATED DOCUMENTS) AND ANY
AMENDMENTS OR SUPPLEMENTS CAREFULLY BEFORE MAKING YOUR INVESTMENT DECISION.
-----------
Our principal executive offices are located at 26555 Northwestern Highway,
Southfield, MI 48034.
Our telephone number is (248) 354-7700.
The date of this prospectus is , 1999.
<PAGE>
----------------
NOTICE TO NEW HAMPSHIRE RESIDENTS
NEITHER THE FACT THAT A REGISTERED STATEMENT OR AN APPLICATION FOR A LICENSE
HAS BEEN FILED UNDER CHAPTER 421-B OF THE NEW HAMPSHIRE UNIFORM SECURITIES ACT
WITH THE STATE OF NEW HAMPSHIRE NOR THE FACT THAT A SECURITY IS EFFECTIVELY
REGISTERED OR A PERSON IS LICENSED IN THE STATE OF NEW HAMPSHIRE CONSTITUTES A
FINDING BY THE SECRETARY OF STATE THAT ANY DOCUMENT FILED UNDER RSA 421-B IS
TRUE, COMPLETE AND NOT MISLEADING. NEITHER ANY SUCH FACT NOR THE FACT THAT AN
EXEMPTION OR EXCEPTION IS AVAILABLE FOR A SECURITY OR A TRANSACTION MEANS THAT
THE SECRETARY OF STATE HAS PASSED IN ANY WAY UPON THE MERITS OR QUALIFICATIONS
OF, OR RECOMMENDED OR GIVEN APPROVAL TO, ANY PERSON, SECURITY OR TRANSACTION.
IT IS UNLAWFUL TO MAKE, OR CAUSE TO BE MADE, TO ANY PROSPECTIVE PURCHASER,
CUSTOMER OR CLIENT ANY REPRESENTATION INCONSISTENT WITH THE PROVISIONS OF THIS
PARAGRAPH.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Where You Can Find More Information....................................... 1
Forward-Looking Statements................................................ 2
Prospectus Summary........................................................ 3
Risk Factors.............................................................. 10
Use of Proceeds........................................................... 14
Capitalization............................................................ 15
Selected Consolidated Financial Data...................................... 16
Ratio of Earnings to Fixed Charges and Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends.................................... 17
Exchange Offer; Registration Rights....................................... 17
Description of Certain Indebtedness....................................... 28
Description of the New Notes.............................................. 30
Book-Entry; Delivery and Form............................................. 40
Material Federal Tax Considerations....................................... 45
Plan of Distribution...................................................... 48
Incorporation of Information by Reference................................. 49
Legal Matters............................................................. 49
Experts................................................................... 49
</TABLE>
WHERE YOU CAN FIND MORE INFORMATION
As required by the Securities Act of 1933, we have filed a registration
statement (No. 333- ) relating to the securities offered by this prospectus
with the SEC. This prospectus is a part of that registration statement, which
includes additional information.
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms at 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, 7 World Trade Center, Suite 1300, New York, New York 10048 and 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. You can also request
copies of the documents, upon payment of a duplicating fee, by writing the
Public Reference Section of the SEC. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference rooms. These SEC filings are also
available to the public from the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file with
the SEC. This permits us to disclose important business and financial
information to you by referencing these filed documents. Any information
referenced this way is considered part of this prospectus, and any information
filed with the SEC subsequent to this prospectus will automatically update and
supersede this information. We incorporate by reference the following
documents, which have been filed with the SEC:
. Annual Report on Form 10-K for the year ended December 31, 1998.
. Quarterly Report on Form 10-Q for the quarter ended March 31, 1999.
. Federal-Mogul's proxy statement for the 1998 Annual Shareholders'
Meeting, filed on March 24, 1999.
. Current Reports on Form 8-K filed on April 7, 1998 and November 24, 1998.
All documents we file pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of this prospectus and before the completion of the
offering of the securities described in this prospectus shall be incorporated
by reference in this prospectus from their date of filing.
1
<PAGE>
You may request a copy of these filings, at no cost, by writing or
telephoning Federal-Mogul at the following address and telephone number: David
M. Sherbin, Esq., Associate General Counsel and Secretary, Federal-Mogul
Corporation, 26555 Northwestern Highway, Southfield, MI 48034, (248) 354-7700.
In order to obtain timely delivery, you must request the information no later
than five business days before the expiration of the exchange offer.
You should rely only on the information provided in this prospectus, as
well as the information incorporated by reference. We have not authorized
anyone to provide you with different information. We are not making an offer
of these securities in any state where the offer is not permitted. You should
not assume that the information in this prospectus or any documents
incorporated by reference is accurate as of any date other than the date on
the front of the applicable document.
FORWARD-LOOKING STATEMENTS
Some of the statements contained or incorporated in this prospectus and the
documents incorporated by reference herein discuss future expectations,
contain projections of results of operations or financial condition or state
other "forward-looking" information. Forward-looking information in this
prospectus and the documents incorporated by reference herein includes
information regarding:
. plans to integrate the businesses of T&N, Fel-Pro and Cooper Automotive
with our business;
. plans to address computer software issues related to the approach of the
year 2000;
. the scope and effect of T&N's asbestos liability; and
. plans to address the issues related to the conversion to the Euro.
Important factors and risks that may cause actual results to differ from
projections include, for example:
. those relating to the combination of our business with those of T&N, Fel-
Pro and Cooper Automotive;
. the anticipated synergies, cost benefits, operating efficiencies,
restructuring charges and related costs in connection with those
acquisitions;
. conditions in the automotive components industry;
. certain global and regional economic conditions; and
. other factors which may be described in our future filings with the SEC.
2
<PAGE>
PROSPECTUS SUMMARY
This summary highlights selected information from this prospectus, but does
not contain all information that is important to you. This prospectus includes
specific terms of the exchange offer. We encourage you to read the detailed
information and consolidated financial statements and the notes thereto
appearing elsewhere in this prospectus in their entirety or incorporated herein
by reference. As used in this prospectus, unless the context indicates
otherwise, (1) all references to "Federal-Mogul," "Company," "we," "our,"
"ours," and "us" refer to Federal-Mogul Corporation and its consolidated
subsidiaries and (2) "Notes" means both the Old Notes and the New Notes.
Federal-Mogul Corporation
We are a leading global manufacturer and distributor of a broad range of
components for automobiles and light trucks, heavy duty trucks, farm and
construction vehicles and industrial products. These components include:
. powertrain systems components which are primarily bearings, rings,
pistons, sintered products and camshafts
. sealing system components which include dynamic seals and gaskets and
. general products which consist primarily of friction products, systems
protection products and wiper products.
We market our products to many of the world's major original equipment
manufacturers. We also manufacture and supply our products and related parts to
the aftermarket relating to each of these categories of equipment.
Founded in 1899, we traditionally focused on the manufacture and
distribution of engine bearings and sealing systems. From 1990 through 1996, we
pursued a strategy of opening retail auto stores in various international
locations. These geographically-dispersed stores proved burdensome to manage
and resulted in substantial operating losses. In the fourth quarter of 1996, we
initiated a change of management, followed by the initiation of a significant
restructuring program designed to refocus our company on our core competencies
of manufacturing, engineering and distribution. As part of this restructuring,
we closed or sold substantially all of our retail operations. Since that time
we have pursued a growth strategy of acquiring complementary manufacturing
companies that enhance our product base, allow for expansion of our global
manufacturing operations and provide opportunities to capitalize on our
aftermarket distribution network and technological resources.
Recent Developments
Acquisitions
In February 1998, we acquired Fel-Pro Incorporated and certain affiliated
entities, which constitute the operating businesses of the Fel-Pro group of
companies, a privately-owned automotive parts manufacturer, for total
consideration of approximately $722 million. Fel-Pro is a premier gasket
manufacturer for the North America aftermarket and original equipment heavy
duty market. We refer to the acquired Fel-Pro entities in this prospectus as
"Fel-Pro".
In connection with our growth strategy, in March 1998 we acquired T&N plc, a
U.K.-based supplier of engine and transmission products, for a total purchase
price of approximately $2.4 billion. T&N plc manufactures and supplies high
technology engineered automotive components and industrial materials including
pistons, friction products, bearings, systems protection, camshafts and sealing
products. We refer to T&N plc in this prospectus as "T&N".
3
<PAGE>
In October 1998, we acquired Cooper Automotive for an initial purchase price
of $1.9 billion, excluding fees and expenses and excluding a post-closing net
asset adjustment to be finalized in the third quarter of 1999. Cooper
Automotive, comprised of the Cooper Automotive and the Moog divisions of Cooper
Industries, Inc., is a premier provider of leading brand name automotive
products to the aftermarket and original equipment market. Cooper Automotive
manufactures and distributes brake and friction products, chassis parts,
ignition products and lighting and wiper products under well-known brand names
including Champion(R), Moog(R), Abex(R), Wagner(R) and Zanxx(R). Among Cooper
Automotive's largest customers, in alphabetical order, are AutoValue,
DaimlerChrysler, Ford, Fiat, General Motors and NAPA. Cooper Automotive had
revenues in 1997 of $1.9 billion.
In December 1998, we acquired Glockler Dichtsysteme Gunter Hemmrich GmbH, a
German manufacturer of rubber sealing components and acoustic decoupling for
valve covers, intake manifolds and oil pans, with sales of approximately $40
million.
In January 1999, we completed the acquisition of Tri-Way Machine Limited, a
privately-owned manufacturer of machines and machining systems for the world's
metal cutting industry headquartered in Windsor, Ontario, Canada with annual
sales of $35 million.
In January 1999, we completed our acquisition of two camshaft machining
plants from Crane Technologies Group, Inc. to expand the capacity of our
automotive product lines. The two plants located in Orland, Indiana and
Jackson, Michigan have annual sales of approximately $36 million.
In June 1999, we acquired the piston division of Alcan Deutschland GmbH, a
unit of Alcan Aluminum Ltd., with sales of approximately $150 million. Alcan's
piston division manufactures high quality pistons for passenger cars and
commercial vehicles with the DURAL(R) brand name.
Other Activities
In December 1998, we sold T&N's thin wall and dry bearings (polymer
bearings) operations and certain other engine hard part assets to Dana
Corporation for a purchase price of $430 million. Net proceeds to us from the
disposition of the T&N bearings business of approximately $372.0 million were
used to repay bank indebtedness incurred in connection with the acquisition of
Cooper Automotive.
In December 1998, we completed the sale of 14.1 million shares of common
stock. Net proceeds to us from the December equity offering of approximately
$781.2 million were used to repay bank indebtedness incurred in connection with
the acquisition of Cooper Automotive.
In January 1999, we issued $400,000,000 principal amount of 7 3/8% Notes due
2006 and $600,000,000 principal amount of 7 1/2% Notes due 2009. We used the
proceeds of these notes to repay borrowings under our prior senior credit
agreements.
In February 1999, we entered into a new $1.75 billion senior credit
agreement at variable interest rates which contains a $1.0 billion
multicurrency revolving credit facility and two term loan components. The
revolving credit facility has a five-year maturity. The term loan components of
$400 million and $350 million mature in five and six years, respectively. The
proceeds of this senior credit agreement were used to refinance the prior
senior credit agreement entered into in connection with the T&N and Cooper
Automotive acquisitions as well as the $400 million multicurrency revolving
credit facility related to the T&N acquisition.
In February 1999, all outstanding shares of our Series E Stock were
exchanged into shares of our common stock. Each of the 607,745 remaining shares
of the Series E Stock were exchanged into five shares of our common stock.
4
<PAGE>
Today, we have over 300 locations, across 6 continents, in 24 countries,
with approximately 55,000 employees worldwide. On a pro forma basis adjusted
for the acquisitions of T&N, Fel-Pro and Cooper Automotive and dispositions as
if they had occurred on January 1, 1998, our total sales for 1998 were
approximately $6.4 billion.
Federal-Mogul is a Michigan corporation with its principal executive offices
located at 26555 Northwestern Highway, Southfield, Michigan 48034. Our
telephone number is (248) 354-7700.
Summary of the Exchange Offer
The form and terms of the New Notes will be substantially identical to those
of the Old Notes except that the New Notes will have been registered under the
Securities Act of 1933. Therefore, the New Notes will not be subject to certain
transfer restrictions, registration rights and related liquidated damages
provisions applicable to the Old Notes. We refer to the 7 3/8% Notes due 2006
and the 7 1/2% Notes due 2009 as the "Old Notes" and the new 7 3/8% Notes due
2006 and the new 7 1/2% Notes due 2009 as the "New Notes".
The Exchange Offer............ We are offering to exchange an aggregate of
$400,000,000 principal amount of new 7 3/8%
Notes due January 15, 2006 for $400,000,000 of
outstanding 7 3/8% Notes due January 15, 2006
and an aggregate of $600,000,000 principal
amount of new 7 1/2% Notes due January 15, 2009
for $600,000,000 of outstanding 7 1/2% Notes
due January 15, 2009. You may only exchange Old
Notes in multiples of $1,000 principal amount.
To be exchanged, an Old Note must be properly
tendered and accepted. All outstanding Old
Notes that are validly tendered and not validly
withdrawn will be exchanged for New Notes
issued on or promptly after the expiration date
of the exchange offer.
Currently, there are $400,000,000 principal
amount of old 7 3/8% Notes due 2006 and
$600,000,000 principal amount of old 7 1/2%
Notes due 2009 outstanding and no New Notes
outstanding.
Issuance of the Old Notes;
Registration Rights...........
The Old Notes were issued and sold in a private
offering to Merrill Lynch, Pierce, Fenner &
Smith, Incorporated, Chase Securities Inc.,
Bear, Stearns & Co. Inc., Credit Suisse First
Boston Corporation, Morgan Stanley & Co.
Incorporated, NationsBanc Montgomery Securities
L.L.C., BancBoston Robertson Stephens Inc., BNY
Capital Markets, Inc., Credit Lyonnais
Securities (USA) Inc., Dresdner Kleinwort
Benson North America LLC, First Chicago Capital
Markets, Inc., First Union Capital Markets, a
division of Wheat First Securities Inc., Scotia
Capital Markets (USA) Inc. and SG Cowen
Securities Corporation, as the initial
purchasers on January 20, 1999. In connection
with that sale, we executed and delivered the
Registration Rights Agreement for the benefit
of the noteholders. In the Registration Rights
Agreement, we agreed to either:
. commence an exchange offer under which the
New Notes, registered under the Securities
Act of 1933 with terms substantially
identical to those of the Old Notes, will be
5
<PAGE>
exchanged for the Old Notes pursuant to an
effective registration statement; or
. cause the Old Notes to be registered under
the Securities Act of 1933 pursuant to a
resale shelf registration statement.
If we do not comply with our obligations under
the Registration Rights Agreement, we will be
required to pay certain liquidated damages that
will be payable twice yearly. For more
information, we refer you to "Exchange Offer;
Registration Rights."
Absence of a Public Market
for the New Notes.............
The New Notes will generally be freely
transferable but will be new securities for
which there will not initially be a market.
Accordingly, there can be no assurance as to
the development or liquidity of any market for
the New Notes.
The initial purchasers have advised us that
they currently intend to make a market in the
New Notes. However, the initial purchasers are
not obligated to do so, and any market-making
with respect to the New Notes may be
discontinued at any time without notice. We do
not intend to apply for listing of the New
Notes on any securities exchange or on any
automated dealer quotation system other than
the Luxembourg Stock Exchange.
Expiration Date............... The exchange offer will expire at 5:00 p.m.,
New York City time, on 1999, unless
we extend it, in which case the term
"expiration date" shall mean the latest date
and time to which we extend the exchange offer.
Conditions to the Exchange We are not required to consummate the exchange
Offer......................... offer if there is any pending or threatened
action or proceeding that would in our judgment
be reasonably expected to impair our ability to
proceed with the exchange offer. For more
information, we refer you to "Exchange Offer;
Registration Rights--Certain Conditions to the
Exchange Offer." The exchange offer is not
conditioned upon any minimum aggregate
principal amount of Old Notes being tendered
for exchange.
Procedures for Tendering Old If you want to tender your Old Notes in the
Notes......................... exchange offer, you must complete and sign a
letter of transmittal and send it, together
with the Old Notes and any other required
documents, to The Bank of New York, as exchange
agent, in compliance with the procedures for
guaranteed delivery contained in the letter of
transmittal. You must send the letter of
transmittal to the exchange agent prior to 5
p.m. on the expiration date of the exchange
offer. If your Old Notes are registered in the
name of a nominee and you wish to tender your
Old Notes in the exchange offer, you should
instruct your nominee to promptly tender your
Old Notes on your behalf.
Guaranteed Delivery If you wish to tender your Old Notes and:
Procedures....................
. your Old Notes are not immediately available;
or
6
<PAGE>
. you cannot deliver your Old Notes or any of
the other documents required by the letter of
transmittal to the exchange agent prior to
the expiration date of the exchange offer; or
. you cannot complete the procedure for book-
entry transfer on a timely basis;
you may tender your Old Notes according to the
guaranteed delivery procedures detailed in the
letter of transmittal. For more information, we
refer you to "Exchange Offer; Registration
Rights--Guaranteed Delivery Procedures."
Withdrawal Rights............. You may withdraw the tender of your Old Notes
at any time prior to the expiration date of the
exchange offer. For more information, we refer
you to "Exchange Offer; Registration Rights--
Withdrawal Rights."
Acceptance of the Old Notes
and Delivery of the New
Notes.........................
We will accept for exchange any and all Old
Notes which you properly tender in the exchange
offer prior to the expiration date of the
exchange offer. We will issue and deliver the
New Notes promptly following the expiration
date of the exchange offer. For more
information, we refer you to "Exchange Offer;
Registration Rights--Terms of the Exchange
Offer."
Resales of the New Notes...... We believe, based on an interpretation by the
staff of the SEC contained in no-action letters
issued to third parties, that you may offer to
sell, sell or otherwise transfer the New Notes
issued to you in this exchange offer without
complying with the registration and prospectus
delivery requirements of the Securities Act of
1933, provided that:
. you are not an "affiliate" of ours within the
meaning of Rule 405 under the Securities Act
of 1933; and
. you acquire the New Notes in the ordinary
course of business and you have no
arrangement or understanding with any person
to participate in the distribution of the New
Notes.
If you are a broker-dealer and you receive New
Notes for your own account in exchange for Old
Notes, you must acknowledge that you will
deliver a prospectus if you decide to resell
your New Notes. For more information, we refer
you to "Plan of Distribution."
Consequences of Failure to If you do not exchange your Old Notes for the
Exchange...................... New Notes pursuant to the exchange offer you
will still be subject to the restrictions on
transfer of your Old Notes as contained in the
legend on the Old Notes. In general, you may
not offer to sell or sell the Old Notes, except
pursuant to a registration statement under the
Securities Act of 1933 or any exemption from
registration thereunder and in compliance with
applicable state securities laws.
7
<PAGE>
Material U.S. Federal Income
Tax Considerations...........
The exchange of Notes will not be a taxable
event for United States federal income tax
purposes. You will not recognize any taxable
gain or loss or any interest income as a result
of the exchange.
Registration Rights The exchange offer is intended to satisfy your
Agreement.................... registration rights under the Registration
Rights Agreement. Those rights will terminate
upon completion of the exchange offer.
Use of Proceeds.............. We will not receive any proceeds from the
issuance of New Notes pursuant to the exchange
offer. In consideration for issuing the New
Notes in exchange for the Old Notes as described
in this prospectus, we will receive, retire and
cancel the Old Notes. For more information, we
refer you to "Use of Proceeds."
Exchange Agent............... The Bank of New York is the exchange agent for
the exchange offer.
Description of the New Notes
New Notes.................... $400,000,000 aggregate principal amount of 7
3/8% Notes due 2006.
$600,000,000 aggregate principal amount of 7
1/2% Notes due 2009.
Maturity..................... The 7 3/8% Notes mature on January 15, 2006.
The 7 1/2% Notes mature on January 15, 2009.
Interest Payment Dates....... January 15 and July 15, commencing on January
15, 2000.
Ranking...................... Except as hereinafter provided, the New Notes
will rank equally in right of payment with all
other unsubordinated, unsecured indebtedness of
Federal-Mogul, and senior in right of payment to
any future subordinated indebtedness of Federal-
Mogul. Indebtedness incurred under our senior
credit agreement and certain other indebtedness
of Federal-Mogul are secured by pledges of all
or a portion of the stock of certain of Federal-
Mogul's subsidiaries and certain intercompany
indebtedness. So long as indebtedness under our
senior credit agreement is secured by such
pledges, existing public indebtedness and the
New Notes will also be secured by such
collateral. Indebtedness incurred under our
senior credit agreement and certain other
indebtedness of Federal-Mogul are also secured
by collateral that does not secure the New
Notes. The indenture for the New Notes will not
contain any restriction upon indebtedness,
whether secured or unsecured, that Federal-Mogul
and its subsidiaries may incur in the future.
Creditors of Federal-Mogul secured by collateral
which does not secure the New Notes will have a
claim on such other collateral prior to any
claims of holders of the New Notes against such
other collateral. For more information, we refer
you to "Description of the New Notes--Ranking."
8
<PAGE>
Optional Redemption........... We may redeem the New Notes, at our option, at
any time, in whole or in part, at a redemption
price equal to the greater of (i) 100% of the
principal amount of the New Notes of such
series to be redeemed or (ii) the sum of the
present values of the Remaining Scheduled
Payments on the New Notes to be redeemed,
discounted to the date of redemption, on a
semiannual basis, at the Treasury Rate plus 50
basis points, plus, in either case, accrued
interest to the date of redemption. For more
information, we refer you to "Description of
the New Notes--Optional Redemption."
Sinking Fund.................. None.
Certain Covenants............. The indenture governing the New Notes contains
covenants that impose, among other things,
limitations on the creation of liens and
limitations on sale and lease-back
transactions. For more information, we refer
you to "Description of the New Notes--Certain
Covenants."
Guarantees.................... The subsidiary guarantors so long as they
guarantee indebtedness under our senior credit
agreement, will unconditionally guarantee the
New Notes. The subsidiary guarantors have
guaranteed all indebtedness under our senior
credit agreement and all public indebtedness.
For more information, we refer you to
"Description of the New Notes--The Guarantees."
Listing....................... We will apply for listing of the New Notes on
the Luxembourg Stock Exchange.
Risk Factors.................. We refer you to "Risk Factors" for a discussion
of certain factors you should carefully
consider before deciding to invest in the New
Notes.
Certain capitalized terms used in this summary are defined in "Description
of the New Notes" beginning on page 30.
9
<PAGE>
RISK FACTORS
An investment in the New Notes involves various risks. If you are
considering tendering Old Notes in exchange for New Notes, you should carefully
review the information contained in this prospectus and the documents to which
they refer. You should particularly consider the following factors:
The Old Notes are subject to transfer restrictions and there is a limited
trading market for the Old Notes
We will issue New Notes in exchange for the Old Notes only after the
exchange agent receives tender of your Old Notes. Therefore, you should allow
sufficient time to ensure timely delivery of your Old Notes. Neither the
exchange agent nor we are under any duty to give notification of defects or
irregularities with respect to your tender of the Old Notes for exchange. If
you do not tender your Old Notes, or if you do tender your Old Notes and they
are not accepted, your Old Notes will continue to be subject to the existing
restrictions upon their transfer. Accordingly, after the completion of the
exchange offer, you will only be able to offer for sale, sell or otherwise
transfer untendered Old Notes as follows:
. to Federal-Mogul;
. pursuant to a registration statement that has been declared effective
under the Securities Act of 1933;
. for so long as the Old Notes are eligible for resale pursuant to Rule
144A under the Securities Act of 1933, to a person you reasonably believe
is a qualified institutional buyer ("QIB") within the meaning of Rule
144A, that purchases for its own account or for the account of a QIB to
whom notice is given that the transfer is being made in reliance on the
exemption from the registration requirements of the Securities Act of
1933 provided by Rule 144A;
. pursuant to offers and sales that occur outside the United States to
foreign persons in transactions complying with the provisions of
Regulation S under the Securities Act of 1933;
. to an "Accredited Investor" within the meaning of Rule 501(a)(1), (2),
(3) and (7) under the Securities Act of 1933 that is an institutional
investor (an "Institutional Accredited Investor") purchasing for its own
account or for the account of such an Institutional Accredited Investor,
in each case in a minimum principal amount of the Old Notes of $250,000;
or
. pursuant to any other available exemption from the registration
requirements of the Securities Act of 1933.
To the extent that Old Notes are tendered and accepted in the exchange offer,
the liquidity of the trading market for untendered Old Notes could be adversely
affected. For more information, we refer you to "Exchange Offer; Registration
Rights."
In addition, any holder of the Old Notes who tenders in the exchange offer
for the purpose of participating in a distribution of the New Notes will be
required to comply with the registration and prospectus delivery requirements
of the Securities Act of 1933 in connection with any resale transaction. Each
broker-dealer who receives New Notes for its own account in exchange for the
Old Notes, where such Old Notes were acquired by such broker-dealer as a result
of market-making activities or any other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such New
Notes. For more information, we refer you to "Plan of Distribution."
10
<PAGE>
We are substantially leveraged and we may not be able to generate sufficient
cash flow from our operations to service our debt
We incurred a significant amount of debt when we purchased T&N, Fel-Pro and
Cooper Automotive. The following chart contains important financial statistics
as of March 31, 1999:
<TABLE>
<S> <C>
Total short-term debt............................... $ 196.1 million
Total long-term debt................................ $3,396.7 million
Total debt.............................................. $3,592.8 million
Company-obligated mandatorily redeemable preferred
securities of subsidiary trust holding solely
convertible subordinated debentures of the Company... $ 575.0 million
Minority interest in consolidated subsidiaries........ $ 36.5 million
Shareholders' equity.................................. $1,888.4 million
----------------
Total capitalization.................................... $6,092.7 million
================
</TABLE>
This means that as of March 31, 1999:
. Our ratio of debt to total capitalization was 59.0%; and
. Our ratio of long-term debt to total capitalization was 55.7%.
Our leverage may have important consequences to holders of the New Notes.
For example, it could:
. limit our ability to obtain additional financing to fund future working
capital requirements, capital expenditures, debt service requirements,
acquisitions or other general corporate requirements;
. require us to use a substantial portion of our cash flow from operations
to pay principal and interest on our indebtedness, which reduces the
funds we will have available to finance operations and future business
opportunities;
. place us at a competitive disadvantage to our competitors that are less
leveraged; and
. increase our vulnerability to adverse economic and industry conditions.
In addition, since certain of our debt is at variable rates of interest, we
will be vulnerable to increases in interest rates. Increases in interest rates
could have a material adverse effect on our operations, liquidity and financial
condition. Our ability to make scheduled principal and interest payments on our
indebtedness and our ability to refinance our indebtedness depend on our future
performance. This performance is, to a certain extent, subject to economic,
financial, competitive and other factors beyond our control.
It is possible that in the future our business may not continue to generate
sufficient cash flow from operations to service our debt and make necessary
capital expenditures. If this occurs, we may be required to adopt one or more
alternatives, such as reducing or delaying planned expansion, selling assets,
restructuring debt or obtaining additional equity capital. There is no
certainty that any of these strategies could be implemented on satisfactory
terms or without substantial additional expense for us. These and other factors
could have a material adverse effect on our results of operations, liquidity
and financial condition and on the marketability, price and future value of the
New Notes.
Our senior credit agreement limits our ability to incur additional debt and
to dispose of assets. Our senior credit agreement also requires us to make
interest and principal payments and payments from material disposals, from
"excess cash flow" and from the proceeds of certain issuances of capital stock
or debt. We must also comply with certain financial ratios and minimum net
worth tests. For more information, we refer you to "Description of Certain
Indebtedness." We may not meet these requirements in the future. If we do not
comply with these requirements, the resulting default under our senior credit
agreement could lead to acceleration of the related debt. Other indebtedness
that contain cross-acceleration or cross-default provisions could also be
accelerated. In such a case, we might not be able to refinance or otherwise
repay such indebtedness.
11
<PAGE>
We may also incur substantial debt in the future, although our ability to do
so is restricted by our senior credit agreement. For more information regarding
our debt and capitalization, we refer you to "Capitalization" and "Description
of Certain Indebtedness."
We may not be able to integrate certain of our acquired businesses
Our business grew in size and complexity due to the acquisitions of T&N,
Fel-Pro and Cooper Automotive. We must integrate operations, management and
personnel of four businesses that previously operated independently and may
encounter difficulties completing this integration. Any material delays or
unexpected costs we incur in connection with the integration process could harm
us and our results of operations, liquidity and financial condition.
We may not achieve desired levels of synergies and the costs of achieving these
synergies may be substantially greater than we anticipate
We analyzed possible economic synergies we hoped to realize as a result of
the acquisitions of T&N, Fel-Pro and Cooper Automotive. It is possible that we
will not achieve the desired levels of synergies. If we fail to achieve our
desired levels of synergies, it could harm our business, results of operations,
liquidity and financial condition.
We have announced that we intend to incur restructuring charges and related
costs of $195 million in connection with synergies targeted for the T&N and
Fel-Pro acquisitions. Of this amount, we expect to ultimately recognize $54
million as expense as incurred, and we have recorded $141 million as a direct
cost of the acquisitions. This is moderately less than the annual level of
synergy benefits anticipated from those acquisitions in the year 2000. In
connection with the Cooper Automotive acquisition, we expect to ultimately
incur restructuring charges and related costs of $126 million. Of this amount,
we expect to ultimately recognize $38 million as expense as incurred, and we
have recorded $88 million as a direct cost of the acquisition. It is possible
that such costs will be substantially greater than these amounts or that
achieving such synergies will require additional costs or charges to earnings
in future periods. Any such cost or charges could harm our business, results of
operations, liquidity and financial condition.
T&N may be subject to material additional asbestos liabilities and significant
additional litigation relating to asbestos that could result in additional
charges not covered by reserves or insurance
T&N and certain of its subsidiaries are among many defendants named in a
large number of court actions brought in the United States, and a smaller
number of claims brought in the United Kingdom, relating to alleged asbestos-
related diseases resulting from exposure to asbestos or products containing
asbestos. T&N is also one of many defendants named in a small number of U.S.
property damage claims. Prior to and including 1996, T&N incurred significant
cost in connection with settling claims, establishing reserves for asbestos
liabilities and obtaining insurance coverage for certain asbestos liabilities.
Prior to our acquisition of T&N, T&N secured a (Pounds)500 million layer of
insurance which will be triggered should the aggregate number of claims
notified after June 30, 1996, where the exposure occurred prior to that date
(which we refer to as IBNR claims), exceed (Pounds)690 million. As of March 31,
1999, we have provided $1.3 billion as its best estimate for future costs
related to resolving asbestos claims. For a more detailed description of T&N's
asbestos liabilities and the financial impact of these liabilities on us, we
refer you to the reports and other information that we have filed with the SEC
and incorporated into this prospectus by reference. Although T&N has carefully
projected its future asbestos liability, the assumptions underlying such
projections continuously change and therefore we cannot project with certainty
the number of such claims that may be made nor the expenditure which may arise
therefrom. T&N may be subject to material additional liabilities and
significant additional litigation relating to asbestos that would result in
additional charges not covered by reserves or insurance. Any such liabilities
or litigation could harm our results of operations, business, liquidity and
financial condition.
12
<PAGE>
We may not succeed in locating and acquiring appropriate companies on
attractive terms, completing potential acquisitions, integrating acquired
companies or realizing desired benefits of such acquisitions
One of our principal business strategies is to acquire businesses both
domestically and internationally in order to expand our manufacturing and
distribution capabilities. We intend to acquire companies that we believe
complement our existing business and will achieve satisfactory rates of return.
We are usually engaged in various stages of evaluating potential acquisition
candidates, and we expect to complete as quickly as possible any acquisition
that we believe meets our criteria. We may not succeed in completing each
potential acquisition and may not in the future succeed in locating and
acquiring appropriate companies on attractive terms, integrating acquired
companies or realizing desired benefits of such acquisitions.
The industry in which we compete is rapidly consolidating, and we cannot
predict or control the timing of certain acquisition opportunities. Certain
potential acquisition opportunities may involve bidding auctions requiring
quick response. Since other companies may also be interested in our potential
acquisition candidates, we may from time to time need to accelerate our
evaluation and pursuit of such candidates. Potential acquisition candidates
could include entities substantially larger than those we have acquired to date
and may involve purchase prices substantially in excess of those paid for
previous acquisitions.
To finance acquisitions, we may need to do one or more of the following:
. increase our outstanding borrowings by a significant amount,
. issue a significant amount of debt securities or
. issue a significant amount of equity securities.
Such borrowings or issuances of debt securities could cause credit rating
agencies to lower their ratings on all or certain of our securities, including
the New Notes, could adversely affect the market price or trading price for
such securities, and may have other important consequences. In addition, such
borrowings or issuances may be on a short-term basis and thus involve a
refinancing risk. We also refer you to "We are substantially leveraged and we
may not be able to generate sufficient cash flow from operations to service our
debt" above. If we are unable to obtain suitable financing, we may be unable to
complete future acquisitions.
The automotive industry is cyclical; a decline in automotive sales and
production could result in a decline in our results of operations or a
deterioration in our financial condition
Our principal operations are directly related to automobile sales and
production in the United States and abroad. Automobile sales and production are
cyclical and can be affected by the strength of a country's general economy. In
addition, automobile production and sales can be affected by labor relations,
regulatory requirements, trade agreements and other factors. A decline in
automotive sales and production would likely affect not only sales to original
equipment customers (purchasers of new automobiles), but also sales to
aftermarket customers (purchasers of replacement parts) and could result in a
decline in our results of operations or a deterioration in our financial
condition. If demand changes and we fail to respond appropriately, our results
of operations could be adversely affected. In addition, technical improvements
in automotive component designs may adversely affect aftermarket demand.
We have substantial international operations that are subject to additional
risks
We have manufacturing and distribution facilities in many countries,
principally in North America, Europe and Latin America. The acquisition of T&N
significantly increased the portion of our business located outside the United
States, though the acquisition of Cooper Automotive partially offset this
effect. International operations are subject to certain risks including:
. exposure to local economic conditions,
. exposure to local political conditions (including the risk of seizure of
assets by foreign governments),
13
<PAGE>
. currency exchange rate fluctuations and currency controls and
. export and import restrictions.
The likelihood of such occurrences and their potential effect on us are
unpredictable and vary from country to country.
We are subject to foreign currency risks
Certain of our operating entities report their financial condition and
results of operations in various foreign currencies (including pounds sterling,
German marks and, to a lesser extent South African rand and French francs). We
translate the reported amounts into U.S. dollars at the applicable exchange
rates in preparing our consolidated financial statements. As a result, the
fluctuating value of the dollar against these foreign currencies will affect
reported sales and operating margin of T&N and other subsidiaries, as
consolidated into Federal-Mogul.
In addition, we are exposed to a risk of loss from changes in foreign
exchange rates whenever we or one of our foreign subsidiaries enters into a
purchase or sales transaction using a currency that is not its normal currency.
While we reduce such risks by matching revenues and costs with the same
currency, changes in currency exchange rates could harm our financial condition
or results of operations.
The global vehicular parts business is highly competitive and if we fail to
successfully compete, our business will be harmed
The global vehicular parts business is highly competitive. We compete with
many of our customers that produce their own components as well as with
independent manufacturers and distributors of components in the United States
and abroad. Certain of our competitors have significantly greater financial and
other resources than us. If we are unable to respond successfully to changing
competitive conditions demand for our products may decline.
USE OF PROCEEDS
We will not receive any proceeds in connection with the exchange offer. In
consideration for issuing the New Notes in exchange for the Old Notes as
described in this prospectus, we will receive, retire and cancel the Old Notes.
The net proceeds from the sale of the Old Notes, after deducting discounts,
commissions and offering expenses were approximately $979.8 million.
We used the net proceeds for the sale of the Old Notes to refinance bank
indebtedness incurred in connection with the acquisitions of T&N, Fel-Pro and
Cooper Automotive.
14
<PAGE>
CAPITALIZATION
The following table sets forth the consolidated capitalization of Federal-
Mogul at March 31, 1999. Other than as indicated herein, there has been no
material change to the information set forth in this capitalization table
between March 31, 1999 and the date hereof.
<TABLE>
<S> <C>
Short-term debt:(1)............................................ $ 196.1
Long-term debt:
Senior credit agreement--term loans.......................... $ 750.0
Multicurrency revolving credit facility...................... 348.0
7.5% Notes due 2004.......................................... 249.6
7.75% Notes due 2006......................................... 399.9
8.8% Notes due 2007.......................................... 124.7
7.875% Notes due 2010........................................ 349.2
7.375% Notes due 2006........................................ 398.4
7.5% Notes due 2009.......................................... 597.5
Medium-term notes due 1999 through 2005...................... 125.0
ESOP obligation.............................................. 7.9
Other........................................................ 46.5
--------
Total long-term debt (2)................................... $3,396.7
========
Minority interest in consolidated subsidiaries................. 36.5
Company-obligated mandatorily redeemable preferred securities
of subsidiary trust holding solely convertible subordinated
debentures of the Company (3)................................. 575.0
Shareholders' equity:
Series C ESOP Convertible Preferred Stock.................... 43.3
Common Stock................................................. 352.0
Additional paid-in capital................................... 1,780.3
Accumulated deficit.......................................... (44.3)
Unearned ESOP compensation................................... (15.1)
Accumulated other comprehensive income....................... (225.7)
Other........................................................ (2.1)
--------
Total shareholders' equity................................. 1,888.4
--------
Total capitalization....................................... $6,092.7
========
</TABLE>
- --------
(1) Includes current maturities of long-term debt.
(2) Less current maturities of long-term debt.
(3) This consists of Federal-Mogul obligated 7% Trust Convertible Preferred
Securities of Federal-Mogul Financing Trust. Substantially all of the
assets of Federal-Mogul Financing Trust consist of the 7% Convertible
Junior Subordinated Debentures of Federal-Mogul.
15
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The following table presents information from Federal-Mogul's consolidated
financial statements for the five years ended December 31, 1998 and each of
three months in the periods ended March 31, 1999 and 1998. You should read this
information in conjunction with our financial statements and related notes
contained in the reports and other information that we have filed with the SEC
and incorporated into this prospectus by reference.
<TABLE>
<CAPTION>
Three months ended
March 31,
(unaudited) Year ended December 31,
----------------------- -----------------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
--------- --------- --------- --------- --------- --------- ---------
(Millions of Dollars, Except Per Share Amounts)
<S> <C> <C> <C> <C> <C> <C> <C>
Consolidated Statement
of Operations Data
Net sales............... $ 1,642.2 $ 658.0 $ 4,468.7 $ 1,806.6 $ 2,032.7 $ 1,998.8 $ 1,889.5
Costs and expenses...... 1,530.3 (1) 650.4 (2) (4,266.9)(3) (1,703.7)(4) (2,258.0)(5) (2,000.7)(6) (1.795.5)
Other expense, net...... (5.3) (6.0) (16.3) (3.4) (3.4) (2.4) (2.5)
Income tax (expense)
benefit................ (45.2) (8.8) (93.6) (27.5) 22.4) (2.5) (31.8)
--------- --------- --------- --------- --------- --------- ---------
Net earnings (loss)
before extraordinary
items and cumulative
effect of change in
accounting principle... 61.4 (7.2) 91.9 72.0 (206.3) (5.8) 59.7
Extraordinary items--
loss on early
retirement of debt, net
of applicable income
tax benefit............ (23.1) -- (38.2) (2.6) -- -- --
Cumulative effect of
change in accounting
for costs of start up
activities, net of
applicable income tax
benefit................ (12.7) -- -- -- -- -- --
--------- --------- --------- --------- --------- --------- ---------
Net earnings (loss)..... $ 25.6 $ (7.2) $ 53.7 $ 69.4 $ (206.3) $ (5.8) $ 59.7
========= ========= ========= ========= ========= ========= =========
Common Shares Summary
(Diluted)
Average shares and
equivalents outstanding
(in thousands)......... 83,700 40,100 53,748 41,854 34,659 34,642 41,800
Earnings (loss) per
share: Before
extraordinary items and
cumulative effect of
change in accounting
principle.............. $ .80 $ (.20) $ 1.67 $ 1.67 $ (6.20) $ (.42) $ 1.38
Extraordinary items--
Loss on early
retirement of debt and
cumulative effect of
change in accounting
principle, net of
applicable income tax
benefits............... (.42) -- (.71) (.06) -- -- --
--------- --------- --------- --------- --------- --------- ---------
Net earnings (loss) per
share.................. $ .38 $ (.20) $ .96 $ 1.61 $ (6.20) $ ( .42) $ 1.38
========= ========= ========= ========= ========= ========= =========
Dividends declared per
share.................. $ .0025 $ .12 $ .1275 $ .48 $ .48 $ .48 $ .48
========= ========= ========= ========= ========= ========= =========
Consolidated Balance
Sheet Data
Total assets............ $ 9,864.5 $ 7,398.7 $ 9,940.1 $ 1,802.1 $ 1,455.2 $ 1,701.1 $ 1,481.7
Short-term debt (7)..... 196.1 837.8 211.0 28.6 280.1 111.9 74.0
Long-term debt.......... 3,396.7 2,273.7 3,130.7 273.1 209.6 481.5 319.4
Company-obligated
mandatorily redeemable
preferred securities of
subsidiary trust
holding solely
convertible
subordinated debentures
of the Company......... 575.0 575.0 575.0 575.0 -- -- --
Shareholders' equity.... 1,888.4 586.0 1,986.2 369.3 318.5 550.3 588.5
Other Financial
Information
Net cash provided from
(used by) operating
activities............. $ (31.9) $ 82.7 $ 325.5 $ 215.7 $ 149.0 $ (34.7) $ 24.3
Expenditures for
property, plant,
equipment and other
long-term assets....... 75.2 19.5 228.5 49.7 54.2 78.5 74.9
Depreciation and
amortization expense... 88.8 29.8 228.0 51.5 61.9 59.2 54.6
</TABLE>
- --------
(1) Includes a $10.1 million charge for integration costs.
16
<PAGE>
(2) Includes a $10.5 million restructuring charge, a $20.0 million charge for
adjustment of assets held for sale and other long-lived assets to fair
value, an $18.6 million charge for purchased in-process research and
development, and a $13.3 million net gain related to the British pound
currency option and forward contract.
(3) Includes a $7.3 million net restructuring charge, a $19.0 million net
charge for adjustment of assets held for sale and other long-lived assets
to fair value, an $18.6 million charge for purchased in-process research
and development, a $22.4 million charge for integration costs, and a $13.3
million net gain related to the British pound currency option and forward
contract.
(4) Includes a $1.1 million net restructuring credit, a $2.4 million charge for
adjustment of assets held for sale and other long-lived assets to fair
value, a $1.6 million credit for reengineering and other related charges,
and a $10.5 million charge related to the British pound currency option and
forward contract.
(5) Includes a $57.6 million restructuring charge, a $151.3 million charge for
adjustment of assets held for sale and other long-lived assets to fair
value, and $11.4 million relating to reengineering and other related
charges.
(6) Includes a $26.9 million restructuring charge, a $51.8 million charge for
adjustment of assets held for sale and other long-lived assets to fair
value, and $13.9 million relating to reengineering and other related
charges.
(7) Includes current maturities of long-term debt.
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED STOCK DIVIDENDS
The following table shows our ratio of earnings to fixed charges and our
ratio of earnings to combined fixed charges and preferred stock dividends for
the three months ended March 31, 1999 and for each of the five most recent
fiscal years.
<TABLE>
<CAPTION>
Three Months
Ended
March 31, Year Ended December 31,
------------- ----------------------------
1999 1998 1998 1997 1996 1995 1994
------ ------ ---- ---- ----- ------ ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges(1)......................... 2.5x 1.1x 1.8x 3.3x N/A(2) N/A(3) 4.3x
Ratio of Earnings to Combined Fixed
Charges and Preferred Stock
Dividends(1)....................... 2.4x 1.1x 1.8x 2.9x N/A(2) N/A(3) 3.1x
</TABLE>
- --------
(1) Federal-Mogul guarantees the debt of the Federal-Mogul Employee Stock
Ownership Plan ("ESOP"); the fixed charges of the ESOP are not included in
the above calculations.
(2) Not applicable as 1996 earnings were inadequate to cover fixed charges by
$173.0 million.
(3) Not applicable as 1995 earnings were inadequate to cover fixed charges by
$53.4 million.
The ratio of earnings to fixed charges has been computed by dividing
earnings by fixed charges. The ratio of earnings to combined fixed charges and
preferred stock dividends has been computed by dividing earnings by the sum of
fixed charges and preferred stock dividend requirements. Earnings consist of
income before income taxes plus fixed charges excluding capitalized interest.
Fixed charges consist of interest on all indebtedness, amortization of debt
issuance costs and the portion of rental expense representative of interest.
EXCHANGE OFFER; REGISTRATION RIGHTS
We sold the Old Notes on January 20, 1999 (the "Issue Date") to the initial
purchasers in a private offering. As a condition to the sale of the Old Notes,
we and certain of the initial purchasers entered into the Registration Rights
Agreement on the Issue Date. The registration statement, of which this
prospectus is part, is intended to satisfy certain of our obligations under the
Registration Rights Agreement summarized below.
17
<PAGE>
Pursuant to the Registration Rights Agreement, we agreed to file, and to
cause the subsidiary guarantors of the Old Notes to file, with the SEC, subject
to the next paragraph, an exchange offer registration statement in the
appropriate form under the Securities Act of 1933 with respect to an offer to
exchange the Old Notes for the New Notes and to offer to the holders of Old
Notes who are able to make certain representations the opportunity to exchange
their Old Notes for New Notes.
. If we or the guarantors of the Old Notes are not permitted to file such
registration statement or to effect the exchange offer because of any
changes in law, SEC rules or regulations or applicable interpretations
thereof by the SEC staff;
. If the exchange offer is not for any other reason declared effective
within 240 days after the Issue Date or the exchange offer is not
consummated within 270 days after the Issue Date; or
. If a holder of Old Notes notifies us within a specified time period that
it is not permitted to participate in the exchange offer or it does not
receive fully tradeable New Notes pursuant to the exchange offer;
then we and the guarantors will, as promptly as practicable, file with the SEC
a shelf registration statement to cover resales of the transfer restricted
notes. We will use our, and will cause the guarantors to use their, best
efforts to cause the registration statement to be declared effective as
promptly as possible but not later than the later of (a) 240 days after the
Issue Date or (b) 30 days after such filing obligation arises (or 90 days in
the event that the SEC performs a full review of such shelf registration
statement).
"Transfer restricted note" means each Old Note until:
. the date on which a registration statement with respect to such Old Note
shall have been declared effective under the Securities Act of 1933 and
such Old Note shall have been disposed of pursuant to such registration
statement;
. the date on which such Old Note has been sold to the public pursuant to
Rule 144 or eligible to be sold pursuant to Rule 144(k) under the
Securities Act of 1933 (or any similar provision then in force, but not
Rule 144A under the Securities Act of 1933);
. such Old Note ceases to be outstanding;
. such Old Note is otherwise transferred by the holder of such Old Note and
we have delivered a New Note not bearing a legend restricting further
transfer, and subsequent disposition of such Old Note does not require
registration or qualification under the Securities Act of 1933; or
. the date on which the exchange offer is consummated (except in the case
of Old Note purchased from us and continuing to be held by the initial
purchasers).
We believe that under existing SEC interpretations, the New Notes would, in
general, be freely transferable after the exchange offer without further
registration under the Securities Act of 1933. However, in the case of broker-
dealers participating in the exchange offer, a prospectus meeting the
requirements of the Securities Act of 1933 must be delivered by such broker-
dealers in connection with resales of the New Notes. We refer you to the
"Morgan Stanley & Co. Inc." SEC No-Action Letter available June 5, 1991, "Exxon
Capital Holdings Corporation" SEC No-Action Letter available May 13, 1988 and
"Shearman & Sterling" SEC No-Action Letter available July 2, 1993 for these SEC
interpretations.
We have agreed to make available a prospectus meeting the requirements of
the Securities Act of 1933 to any such broker-dealer for use in connection with
any resale of any New Notes acquired in the exchange offer for a period of 180
days after consummation of the resale of any New Notes acquired in the exchange
offer. A broker-dealer that delivers such a prospectus to purchasers in
connection with such resales will be subject to certain of the civil liability
provisions under the Securities Act of 1933 and will be bound by certain
provisions of the Registration Rights Agreement (including certain
indemnification rights and obligations).
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If you hold Old Notes and wish to exchange such Old Notes for New Notes in
the exchange offer, you will be required to make certain representations,
including representations that:
. any New Notes to be received by you will be acquired in the ordinary
course of its business;
. you have no arrangement or understanding with any person to participate
in the distribution (within the meaning of the Securities Act of 1933) of
the New Notes;
. you are not an affiliate of Federal-Mogul (as defined in Rule 405 under
the Securities Act of 1933); and
. such other representations reasonably necessary under applicable SEC
rules, regulations or interpretations.
If you are not a broker-dealer, you will be required to represent that you
are not engaged in, and do not intend to engage in, the distribution of the New
Notes. If you are a broker-dealer and you are receiving New Notes for your own
account in exchange for Old Notes that were acquired as a result of market-
making activities or other trading activities, you will be required to
acknowledge that you will deliver a prospectus in connection with any resale of
such New Notes.
We have agreed to pay the expenses incident to the exchange offer and will
indemnify the initial purchasers against certain liabilities, including
liabilities under the Securities Act of 1933.
The SEC has recently proposed that its interpretations referred to above be
repealed if the SEC adopts certain proposed rule changes under the Securities
Act of 1933, and has indicated that it may repeal these interpretations in any
event. If those interpretations are repealed before the exchange offer is
consummated so that the exchange offer would no longer be permissible, then
holders of the Old Notes will not be able to receive New Notes pursuant to an
exchange offer. Rather, the Old Notes will only be registered in connection
with resales by the holders. In connection with such resales, the holders will
be required to deliver a prospectus to the purchasers and will be subject to
certain of the civil liability provisions under the Securities Act of 1933.
The Registration Rights Agreement provides that:
. we and the guarantors will file such registration statement with the SEC
as soon as practicable but not later than 180 days after the Issue Date,
unless the exchange offer would not be permitted by applicable law or SEC
policy;
. we will use our best efforts to cause such registration statement to be
declared effective by the SEC within 240 days of the Issue Date, unless
the exchange offer would not be permitted by applicable law or SEC
policy;
. we will use our best efforts to keep the exchange offer registration
statement effective until the closing of the exchange offer and to cause
the exchange offer to be consummated not later than 270 days following
the Issue Date, unless the exchange offer would not be permitted by
applicable law or SEC policy; and
. if obligated to file the shelf registration statement, we and the
guarantors, as applicable, will file with the SEC a shelf registration
statement, as promptly as practicable, and thereafter will use our best
efforts to cause such shelf registration statement to be declared
effective as promptly as practicable but not later than the later of (a)
240 days after the Issue Date or (b) 30 days after such filing obligation
arises (or 90 days in the event that the SEC performs a full review of
such shelf registration statement).
We and the guarantors, as applicable, have agreed to use our best efforts to
keep such shelf registration statement continuously effective, supplemented and
amended until the second anniversary of the Issue Date or such shorter period
that will terminate when all the transfer restricted notes covered by the shelf
registration statement have been sold pursuant to the shelf registration
statement or cease to be outstanding. However, we and the guarantors will be
permitted to suspend the use of the prospectus that is a part of such shelf
registration statement for a period not to exceed 30 days in any three-month
period if compliance with our obligations
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under the Registration Rights Agreement would require us to disclose under
applicable law material non-public information that we have a bona fide
business purpose in not disclosing. This period may be extended to 60 days in
any three-month period under certain circumstances relating to material
acquisitions and similar transactions involving Federal-Mogul, but not more
than 120 days in any twelve-month period. A holder of Old Notes that sells its
Old Notes pursuant to the shelf registration statement generally will be
required to be named as a selling security holder in the related prospectus and
to deliver a prospectus to purchasers, will be subject to certain of the civil
liability provisions under the Securities Act of 1933 in connection with such
sales and will be bound by the provisions of the Registration Rights Agreement
that are applicable to such holder (including certain information,
indemnification and contribution obligations).
Each of the following is a "registration default":
. If we and the guarantors fail to file the exchange offer registration
statement on or before the 180th day after the Issue Date, unless the
exchange offer would not be permitted by applicable law or SEC policy;
. If the exchange offer registration statement is not declared effective by
the SEC on or prior to the 240th day after the Issue Date, unless the
exchange offer would not be permitted by applicable law or SEC policy;
. If the exchange offer is not consummated on or prior to the 270th day
after the Issue Date, unless the exchange offer would not be permitted by
applicable law or SEC policy; or
. If a shelf registration statement is required to be filed, such shelf
registration statement is not declared effective on or before the date
specified above for such effectiveness.
If a registration default occurs then the interest rate borne by the Old
Notes as to which a registration default exists will be increased by 0.25% per
year with respect to the first 90-day period (or portion thereof) during which
a registration default is continuing immediately following the occurrence of
such registration default, and such interest rate shall increase by an
additional 0.25% per year at the beginning of each subsequent 90-day period
while a registration default is continuing until all registration defaults have
been cured, up to a maximum rate of additional interest of 1.00% per year.
If the shelf registration statement ceases to be effective or is unusable by
the holders of the Old Notes for any other reason for more than 30 days in the
aggregate in any twelve-month period other than as permitted above, then the
interest rate on the Old Notes as to which such default exists will be
increased by 0.25% per year with respect to the first 90-day period (or a
portion thereof) beginning on the 31st day after the shelf registration
statement ceases to be effective or otherwise usable, and increasing an
additional 0.25% per year at the beginning of each subsequent 90-day period
during which the shelf registration statement ceases to be effective or
otherwise usable, up to a maximum rate of additional interest of 1.00% per
year.
Additional interest as a result of a registration default shall cease to
accrue (but any accrued amount shall be payable) and the interest rate on the
Old Notes will revert to the original rate if the registration default giving
rise to such increase is no longer continuing and no other registration default
has occurred and is continuing.
The description above of the Registration Rights Agreement summarizes
material provisions but does not restate such provisions or summarize all of
the provisions. You should read the Registration Rights Agreement. You can
obtain a copy of the Registration Rights Agreement upon request from Federal-
Mogul.
Terms of the Exchange Offer
Upon the terms and subject to the conditions set forth in this prospectus
and the letter of transmittal, we will accept any and all of the Old Notes
validly tendered and not withdrawn prior to the expiration date of the exchange
offer. As of the date of this prospectus, $400 million aggregate principal
amount of 7 3/8% Notes due 2006 is outstanding and $600 million aggregate
principal amount of 7 1/2% Notes due 2009 is outstanding. This
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prospectus, together with the letter of transmittal, is first being sent on or
about , 1999, to all holders of Old Notes known to us. Our obligation
to accept the Old Notes for exchange pursuant to the exchange offer is subject
to the conditions as set forth under "--Certain Conditions to the Exchange
Offer" below. We will issue $1,000 principal amount of New Notes in exchange
for $1,000 principal amount of outstanding Old Notes accepted in the exchange
offer. Holders of Old Notes may tender some or all of their Old Notes pursuant
to the exchange offer. See "--Consequences of Failure to Exchange." However,
the Old Notes may be tendered only in integral multiples of $1,000.
The New Notes will evidence the same debt as the Old Notes for which they
are exchanged, and are entitled to the benefits of the indenture covering the
Old Notes (the "Indenture"). The form and terms of the New Notes are the same
in all material respects as the form and terms of the Old Notes, except that
the New Notes have been registered under the Securities Act of 1933. Therefore,
the New Notes will not bear legends restricting their transfer.
Holders of Old Notes do not have any appraisal or dissenters' rights under
the Indenture in connection with the exchange offer. We intend to conduct the
exchange offer in accordance with the applicable requirements of Regulation 14E
under the Securities Exchange Act of 1934.
We shall be deemed to have accepted validly tendered Old Notes when, as, and
if we have given verbal or written notice of our acceptance to the exchange
agent. The exchange agent will act as agent for the tendering holders of Old
Notes for the purpose of receiving the New Notes.
If any tendered Old Notes are not accepted for exchange because of an
invalid tender, or the failure to satisfy other conditions to the exchange
offer or otherwise, we will return such unaccepted tenders of Old Notes without
expense to the holder of the Old Notes, as promptly as practicable after the
expiration date of the exchange offer.
Holders of Old Notes whose Old Notes are not tendered or are tendered but
not accepted in the exchange offer will continue to hold such Old Notes and
will be entitled to all the rights and preferences and subject to the
limitations applicable to the Old Notes under the Indenture. Following
completion of the exchange offer, the noteholders will continue to be subject
to the existing restrictions upon transfer of the Old Notes and we will have no
further obligation to those noteholders to provide for the registration under
the Securities Act of 1933 of the Old Notes held by them. To the extent the Old
Notes are tendered and accepted in the exchange offer, the trading market for
untendered, and tendered but unaccepted, Old Notes could be adversely affected.
See "Risk Factors--The Old Notes are subject to transfer restrictions and there
is a limited trading market for the Old Notes."
Noteholders who tender Old Notes in the exchange offer will not be required
to pay brokerage commissions or fees or, subject to the instructions in the
letter of transmittal, transfer taxes with respect to the exchange of Old Notes
pursuant to the exchange offer. We will pay all charges and expenses, other
than certain applicable taxes, in connection with the exchange offer. See "--
Fees and Expenses; Solicitation of Tenders."
Expiration Date; Extensions; Amendments
Expiration Date means 5:00 p.m., New York City time on ,
1999 unless we extend the exchange offer. If we do extend the exchange offer,
the term expiration date shall mean the date and time to which the exchange
offer is extended.
We may extend the expiration date of the exchange offer from time to time by
giving written or oral notice to the exchange agent and by timely public
announcement.
We reserve the right at our sole discretion:
. to delay accepting any Old Notes;
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. to extend the exchange offer;
. to amend the terms of the exchange offer in any manner; or
. to terminate the exchange offer and not accept any Old Notes not
previously accepted if any of the conditions set forth below under "--
Certain Conditions to the Exchange Offer" shall have occurred and shall
not have been waived by us.
Any such delay in acceptance, extension, amendment or termination will be
followed as promptly as practicable by written or oral notice thereof to the
noteholders. During any extension of the expiration date of the exchange offer,
all Old Notes previously tendered will remain subject to the exchange offer and
may be accepted for exchange by us. We shall have no obligation to publish,
advertise, or otherwise communicate any such public announcement, other than by
making a timely release to an appropriate news agency.
Interest on the New Notes
Interest accrues on the new 7 3/8% Notes at the rate of 7 3/8% per annum and
on the new 7 1/2% Notes at the rate of 7 1/2% per annum and will be payable in
each case in cash semiannually in arrears on each January 15 and July 15,
commencing January 15, 2000. Interest on the Old Notes accepted for exchange
will cease to accrue upon issuance of the New Notes.
Procedures for Tendering the Old Notes
When a beneficial owner of Old Notes tenders them to Federal-Mogul as set
forth below and Federal-Mogul accepts the Old Notes, the beneficial owner of
the Old Notes and Federal-Mogul will be deemed to have entered into a binding
agreement upon the terms and subject to the conditions set forth in this
prospectus and the letter of transmittal.
Except as set forth below, if you wish to tender the Old Notes for exchange
pursuant to the exchange offer, you must transmit a properly completed and duly
executed letter of transmittal, including all other documents required by such
letter of transmittal, to the exchange agent at one of the addresses set forth
below under "Exchange Agent") on or prior to the expiration date of the
exchange offer. In addition:
. the exchange agent must receive certificates for such Old Notes along
with the letter of transmittal;
. the exchange agent must receive prior to the expiration date of the
exchange offer a timely confirmation of a book-entry transfer of such Old
Notes into the exchange agent's account at The Depository Trust Company
pursuant to the procedure for book-entry transfer described below; or
. the noteholder must comply with the guaranteed delivery procedures
described below.
The method of delivery of Old Notes, letters of transmittal and all other
required documents is at the election and risk of the noteholder. If such
delivery is by mail, we recommend that registered mail, properly insured, with
return receipt requested, be used. In all cases, you should allow sufficient
time to assure timely delivery. You should not send letter of transmittal or
Old Notes to Federal-Mogul directly.
Each signature on a letter of transmittal or a notice of withdrawal, as the
case may be, must be guaranteed unless:
. tendered Old Notes are registered in the name of the signer of the letter
of transmittal and the New Notes are to be issued (and any untendered Old
Notes are to be reissued) in the name of such registered noteholder and
delivered to the address of such registered noteholder as appears on the
note register for the Old Notes; or
. for the account of an Eligible Institution (as defined below).
In the event that a signature on a letter of transmittal or a notice of
withdrawal, as the case may be, is required to be guaranteed, such guarantee
must be by a firm which is a member of a registered national
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securities exchange or a member of the National Association of Securities
Dealers, Inc. or by a commercial bank or trust company having an office or
correspondence in the United States or otherwise an "eligible guarantor
institution" within the meaning of Rule 17Ad-15 under the Exchange Act of 1934
(collectively, "Eligible Institutions"). If the Old Notes are registered in the
name of a person other than the person signing the letter of transmittal, the
Old Notes surrendered for exchange must be endorsed by, or be accompanied by, a
written instrument or instruments of transfer or exchange, in satisfactory form
as determined by us in our sole discretion, duly executed by the registered
noteholder with the signature thereon guaranteed by an Eligible Institution. In
either case, the Old Notes must be signed exactly as the name or names of the
registered noteholder or noteholders that appear on the Old Notes.
If a trustee, executor, administrator, guardian, attorney-in-fact, officer
of a corporation or another acting in a fiduciary or representative capacity
signs the letter of transmittal or any Old Notes or powers of attorney, the
person signing should indicate in which capacity he or she is signing and,
unless waived by us, submit proper evidence satisfactory to us of his or her
authority to sign with the letter of transmittal.
By tendering, each noteholder will represent to us that, among other things:
. the New Notes acquired pursuant to the exchange offer are being acquired
in the ordinary course of business of the person receiving such New
Notes, whether or not that person is the noteholder;
. neither the noteholder nor any other person receiving such New Notes has
an arrangement or understanding with any person to participate in the
distribution of such New Notes;
. if the noteholder is not a broker-dealer, or is a broker-dealer but will
not receive New Notes for its own account in exchange for the Old Notes,
neither the noteholder nor any other person receiving such New Notes is
engaged in or intends to participate in the distribution of such New
Notes; and
. neither the noteholder nor any other person receiving such New Notes is
an "affiliate" of Federal-Mogul, as defined under Rule 405 of the
Securities Act.
If the tendering noteholder is a broker-dealer that will receive New Notes
for its own account in exchange for Old Notes that were acquired as a result of
marker-making activities or other trading activities, the noteholder will be
required to acknowledge that it will deliver a prospectus in connection with
any resale of such New Notes. The letter of transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act of 1933.
Delivery of Documents to The Depository Trust Company or Federal-Mogul Does Not
Constitute Delivery to the Exchange Agent
We will determine in our sole discretion all questions as to the validity,
form, eligibility (including time of receipt) and acceptance of the Old Notes
tendered for exchange, which determination shall be final and binding. We
reserve the absolute right to reject any and all tenders of any particular Old
Notes not properly tendered or to not accept any particular Old Notes which
acceptance might, in our judgment or our counsel's judgment, be unlawful. We
also reserve the absolute right in our sole discretion to waive any defects or
irregularities or conditions of the exchange offer as to any particular Old
Notes either before or after the expiration date of the exchange offer
(including the right to waive the ineligibility of any noteholder who seeks to
tender Old Notes in the exchange offer). The interpretation of the terms and
conditions of the exchange offer as to any particular Old Notes either before
or after the expiration date of the exchange offer (including the letter of
transmittal and its instructions) by us shall be final and binding on all
parties. Unless waived, any defects or irregularities in connection with the
tenders of Old Notes for exchange must be cured within a reasonable period of
time as we shall determine. Neither Federal-Mogul, the exchange agent nor any
other person shall be under any duty to give notification of any defect or
irregularities with respect to any tender of Old Notes for exchange, nor shall
any of them incur any liability for failure to give such notification.
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Acceptance of the Old Notes for Exchange; Delivery of the New Notes
Upon satisfaction or waiver of all of the conditions to the exchange offer,
we will accept, promptly after the expiration date of the exchange offer, all
Old Notes properly tendered and will issue the New Notes promptly after
acceptance of the Old Notes. See "--Certain Conditions to the Exchange Offer"
below. For purposes of the exchange offer, we shall be deemed to have accepted
properly tendered Old Notes for exchange when, and if, we have given verbal or
written notice of our acceptance to the exchange agent.
In all cases, issuance of the New Notes for the Old Notes that are accepted
for exchange pursuant to the exchange offer will be made only after timely
receipt by the exchange agent of the following:
. certificates for such Old Notes or a timely confirmation of a book-entry
transfer of such Old Notes into the exchange agent's account at The
Depository Trust Company pursuant to the book-entry transfer procedures
described below;
. a properly completed and duly executed letter of transmittal; and
. all other required documents.
If any tendered Old Notes are not accepted for any reason set forth in the
terms and conditions of the exchange offer or if certificates representing the
Old Notes are submitted for a greater principal amount than the noteholder
desires to exchange, those unaccepted or non-exchanged Old Notes will be
returned without expense to the tendering noteholder thereof (or, in the case
of Old Notes tendered by book-entry transfer into the exchange agent's account
at The Depository Trust Company pursuant to the book-entry transfer procedures
described below, those non-exchanged Old Notes will be credited to an account
maintained with The Depository Trust Company) as promptly as practicable after
the expiration or termination of the exchange offer.
Book-Entry Transfer
The exchange agent will make a request to establish an account with respect
to the Old Notes at The Depository Trust Company for purposes of the exchange
offer within two days after the date of this prospectus. Any financial
institution that is a participant in The Depository Trust Company's systems may
make book-entry delivery of the Old Notes by causing The Depository Trust
Company to transfer such Old Notes into the exchange agent's account at The
Depository Trust Company in accordance with The Depository Trust Company's
Automated Tender Offer Program ("ATOP") procedures for transfer. However, the
exchange for the Old Notes so tendered will only be made after timely
confirmation of such book-entry transfer of Old Notes into the exchange agent's
account, and timely receipt by the exchange agent of an Agent's Message (as
such term is defined in the next sentence) and any other documents required by
the letter of transmittal on or prior to the expiration date of the exchange
offer or pursuant to the guaranteed delivery procedures described below. The
term "Agent's Message" means a message, transmitted by The Depository Trust
Company and received by the exchange agent and forming a part of a timely
confirmation of a book-entry transfer, which states that The Depository Trust
Company has received an express acknowledgment from a noteholder tendering Old
Notes that are the subject of such timely confirmation of a book-entry transfer
that such noteholder has received and agrees to be bound by the terms of the
letter of transmittal, and that we may enforce such agreement against such
noteholder.
Guaranteed Delivery Procedures
If a registered holder of the Old Notes desires to tender such Old Notes and
the Old Notes are not immediately available, or time will not permit such
holder's Old Notes or other required documents to reach the exchange agent
before the expiration date of the exchange offer, or the procedure for book-
entry transfer cannot be completed on a timely basis, a tender may be effected
if:
. the tender is made through an Eligible Institution;
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. prior to the expiration date of the exchange offer, the exchange agent
receives from such Eligible Institution a notice of guaranteed delivery,
substantially in the form provided by us (by facsimile transmission, mail
or hand delivery), setting forth the name and address of the noteholder
and the amount of Old Notes tendered, the names in which the Old Notes
are registered and, if possible, the certificate numbers of the Old Notes
to be tendered and stating that the tender is being made thereby and
guaranteeing that within three business days after the expiration date,
the certificates of all physically tendered Old Notes, in proper form for
transfer, or a timely confirmation of a book-entry transfer, as the case
may be, a properly completed and duly executed letter of transmittal and
any other required documents will be deposited by the Eligible
Institution with the exchange agent; and
. the certificates for all physically tendered Old Notes, in proper form
for transfer, or a timely confirmation of a book-entry transfer, as the
case may be, and all other documents required by the letter of
transmittal, are received by the exchange agent within three business
days after the expiration date of the exchange offer.
Withdrawal Rights
You may withdraw your tender of the Old Notes at any time prior to the
expiration date of the exchange offer.
For a withdrawal to be effective, the exchange agent must receive a written
notice of withdrawal at the address or facsimile number set forth below under
"Exchange Agent." Any such notice of withdrawal must:
. specify the name of the person having tendered the Old Notes to be
withdrawn;
. identify the Old Notes to be withdrawn (including the certificate numbers
and principal amount of such Old Notes);
. specify the principal amount of Old Notes to be withdrawn;
. include a statement that the noteholder is withdrawing his or her
election to have such Old Notes exchanged;
. be signed by the noteholder in the same manner as on the original letter
of transmittal or as otherwise described above (including required
signature guarantees) or be accompanied by such documents of transfer
sufficient to have the Trustee register the transfer of such Old Notes
into the names of the person withdrawing the tender; and
. specify the name in which such Old Notes are registered, if different
from that of the withdrawing noteholder.
If certificates for Old Notes have been delivered or otherwise identified to
the exchange agent, then, prior to the release of such certificates, the
withdrawing noteholder must also submit the certificate numbers of the
particular certificates to be withdrawn and a signed notice of withdrawal with
signatures guaranteed by an Eligible Institution unless such noteholder is an
Eligible Institution. If Old Notes have been tendered pursuant to the procedure
for book-entry transfer described above, any notice of withdrawal must specify
the name and number of the account at The Depository Trust Company to be
credited with the withdrawn Old Notes and otherwise comply with the procedures
of such facility. We will determine all questions as to the validity, form and
eligibility (including time of receipt) of such notices, which shall be final
and binding on all parties. Any Old Notes so withdrawn will be deemed not to
have been validly tendered for exchange for purposes of the exchange offer. Old
Notes which have been tendered for exchange but which are not exchanged for any
reason will be returned to the noteholder thereof without cost to such
noteholder (or, in the case of Old Notes tendered by book-entry transfer
procedures described above, such Old Notes will be credited to an account
maintained with the Depository Trust Company for the Old Notes) as soon as
practicable after withdrawal, rejection of tender or termination of the
exchange offer. You may re-tender your properly withdrawn Old Notes by
following one of the procedures described under "--Procedures for Tendering the
Old Notes" above at any time on or prior to the expiration date of the exchange
offer.
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Certain Conditions to the Exchange Offer
Notwithstanding any other provision of the exchange offer, we shall not be
required to accept for exchange, or to issue New Notes in exchange for, any Old
Notes and may terminate or amend the exchange offer, if at any time before the
acceptance of such Old Notes for exchange or the exchange of the New Notes for
such Old Notes, there shall be threatened, instituted or pending any action or
proceeding before, or any injunction, order or decree shall have been issued
by, any court or governmental agency or other governmental regulatory or
administrative agency or commission:
(1) seeking to restrain or prohibit the making or consummation of the
exchange offer or any other transaction contemplated by the exchange
offer, or assessing or seeking any damages as a result thereof, or
(2) resulting in a material delay in our ability to accept for exchange or
exchange some or all of the Old Notes pursuant to the exchange offer;
or
(3) any statute, rule, regulation, order or injunction shall be sought,
proposed, introduced, enacted, promulgated or deemed applicable to the
exchange offer or any of the transactions contemplated by the exchange
offer by any government or governmental authority, domestic or foreign;
or
(4) any action shall have been taken, proposed or threatened, by any
government, governmental authority, agency or court, domestic or
foreign;
that in our sole judgment might directly or indirectly result in any of the
consequences referred to in (1) or (2) above or, in our sole judgment, might
result in the holders of New Notes having obligations with respect to resales
and transfer of New Notes which exceed those described in this prospectus, or
would otherwise make it inadvisable to proceed with the exchange offer.
If we determine in good faith that any of the conditions are not met, we
may:
. refuse to accept any Old Notes and return all tendered Old Notes to
exchanging noteholders;
. extend the exchange offer and retain all Old Notes tendered prior to the
expiration of the exchange offer, subject, however, to the rights of
noteholders to withdraw such Old Notes (see "--Withdrawal Rights"); or
. waive certain of such unsatisfied conditions with respect to the exchange
offer and accept all properly tendered Old Notes which have not been
withdrawn or revoked. If such waiver constitutes a material change to the
exchange offer, we will promptly disclose such waiver by means of a
prospectus supplement that will be distributed to all noteholders.
Noteholders have certain rights and remedies against us under the
Registration Rights Agreement, including liquidated damages in the event that
we fail to consummate the exchange offer within a certain period of time, even
if the failure is due to the occurrence of any of the conditions stated above.
Such conditions are not intended to modify those rights or remedies in any
respect.
The foregoing conditions are for our benefit and may be asserted by us in
good faith regardless of the circumstances giving rise to such condition or may
be waived by us in whole or in part at any time and from time to time in our
discretion. The failure by us at any time to exercise the foregoing rights
shall not be deemed a waiver of any such right and each such right shall be
deemed an ongoing right which may be asserted at any time and from time to
time.
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Exchange Agent
We have appointed The Bank of New York as exchange agent for the exchange
offer. You should direct your questions and requests for assistance, requests
for additional copies of this prospectus or of the letter of transmittal to the
exchange agent addressed as follows:
By registered or certified mail, by overnight courier, or by hand:
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Martha James
Telephone: (212) 815-6335
Facsimile: (212) 815-4699
If you deliver to an address other than as set forth above or transmit
instructions via facsimile other than as set forth above, it will not be a
valid delivery.
Fees and Expenses; Solicitation of Tenders
We will bear the expenses of soliciting tenders. The principal solicitation
is being made by mail; however, additional solicitation may be made by
telegraph, facsimile, telephone or in person by our officers and regular
employees and our affiliates.
We have not retained any dealer-manager in connection with the exchange
offer and will not make any payments to brokers, dealers or others soliciting
acceptance of the exchange offer. We, however, will pay the exchange agent
reasonable and customary fees for its services and will reimburse it for its
reasonable out-of-pocket expenses in connection with the exchange offer.
The cash expenses to be incurred in connection with the exchange offer will
be paid by us and are estimated in the aggregate to be $75,000, which includes
fees and expenses of the exchange agent and the trustee under the Indenture and
accounting and legal fees.
We will pay all transfer taxes, if any, applicable to the exchange of the
Old Notes pursuant to the exchange offer. If, however, certificates
representing the New Notes or the Old Notes for principal amounts not tendered
or accepted for exchange are to be delivered to, or are to be registered or
issued in the name of, any person other than the registered noteholders
tendered, or if a transfer tax is imposed for any reason other than the
exchange of the Old Notes pursuant to the exchange offer, then the tendering
noteholder must pay the amount of any such transfer taxes (whether imposed on
the registered holder or any other persons). If a tendering noteholder does not
submit satisfactory evidence of payment of such taxes or exemption therefrom to
the exchange agent, the amount of such transfer taxes will be billed directly
to such tendering noteholder.
We have not authorized any person to give any information or to make any
representations in connection with the exchange offer other than those
contained in this prospectus. If given or made, such information or
representations should not be relied upon as having been authorized by us.
Neither the delivery of this prospectus nor any exchange made hereunder shall,
under any circumstances, create any implication that there has been no change
in our affairs since the respective dates as of which information is given in
this prospectus. The exchange offer is not being made to (nor will tenders be
accepted from or on behalf of) noteholders in any jurisdiction in which the
making of the exchange offer or the acceptance of this prospectus would not be
in compliance with the laws of such jurisdiction.
Accounting Treatment
We will record the New Notes at the same carrying value as the Old Notes,
which is face value, as recorded in our accounting records on the date of the
exchange. Accordingly, no gain or loss for accounting purposes will be
recognized. The costs of the exchange offer will be expensed over the term of
the New Notes.
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Consequences of Failure to Exchange
If you do not exchange your Old Notes for New Notes pursuant to the exchange
offer, you will continue to be subject to the restrictions on transfer of such
Old Notes as set forth in the legend on the Old Notes. In general, you may not
offer to sell or sell the Old Notes, unless registered under the Securities Act
of 1933, except pursuant to an exemption from, or in a transaction not subject
to, the Securities Act of 1933 and applicable state securities laws. We do not
intend to register the Old Notes under the Securities Act of 1933. We believe
that, based upon interpretations contained in no-action letters issued to third
parties by the staff of the SEC, any noteholder may offer for resale, resell or
otherwise transfer the New Notes issued pursuant to the exchange offer in
exchange for the Old Notes (unless the noteholder is an "affiliate" of Federal-
Mogul within the meaning of Rule 405 under the Securities Act of 1933) without
compliance with the registration and prospectus delivery provisions of the
Securities Act of 1933, provided that:
. the noteholder acquires the New Notes in the ordinary course of its
business; and
. the noteholder has no arrangement with any person to participate in the
distribution of such Old Notes; and
. each broker-dealer that receives new Notes for its own account in
exchange for Old Notes must acknowledge that it will deliver a prospectus
in connection with any resale of such New Notes. See "Plan of
Distribution."
If any noteholder (other than a broker-dealer described in the preceding
sentence) has any arrangement or understanding with respect to the distribution
of the New Notes to be acquired pursuant to the exchange offer, such noteholder
could not rely on the applicable interpretations of the staff of the SEC and
must comply with the registration and prospectus delivery requirements of the
Securities Act of 1933 in connection with any resale transaction. In addition,
to comply with the securities laws of certain jurisdictions, if applicable, you
may not offer or sell the New Notes unless they have been registered or
qualified for sale in such jurisdiction or an exemption from registration or
qualification is available and is complied with.
DESCRIPTION OF CERTAIN INDEBTEDNESS
Senior Credit Agreement
General
In February 1999, we refinanced our existing credit facilities and entered
into a five-year $1.75 billion senior credit facility (the "Senior Credit
Agreement") consisting of a $1.0 billion revolving credit facility, a $400
million Tranche A Term Loan and a $350 million Tranche B Term Loan, each with
The Chase Manhattan Bank ("Chase") as agent and a syndicate of lenders. The
entire amount of the Tranche A and B Term Loans were drawn down as well as $373
million of the revolving credit facility. The proceeds were used to repay the
outstanding amounts owing under a $2.75 billion floating rate senior credit
facility and a $1.95 billion floating rate senior credit agreement, each of
which we entered into with Chase as agent and a syndicate of lenders.
The Tranche A Term Loans mature on February 24, 2004 and are to be repaid in
17 quarterly installments commencing February 24, 2000, the amount of each
quarterly installment being $10 million in February 2000 through February 2001,
$25 million in March 2001 through February 2003, $35 million in March 2003
through November 2003, and $45 million in February 2004. The Tranche B Term
Loans mature on February 24, 2005 and are to be repaid in 21 quarterly
installments commencing February 24, 2000, the amount of each installment being
$1 million through February 2004, $50 million March 2004 through November 2004
and $183 million in February 2005.
Under the Senior Credit Agreement, we may borrow up to an aggregate amount
of $1 billion outstanding at any time in revolving credit loans, which are
available for working capital, acquisitions, and general corporate purposes for
a period of five years commencing February 24, 1999. Up to $125 million of the
revolving credit loans may be borrowed in currencies other than U.S. dollars.
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Indebtedness under the Senior Credit Agreement bears interest at a floating
rate based upon, at our option, either:
. the prime rate of Chase ("Base Rate"), plus a margin, or
. the average of the offering rates of certain banks in the London
interbank eurodollar market for U.S. dollar deposits ("Eurodollar Rate"),
plus a margin.
The applicable margins depend upon our consolidated leverage ratio:
-- in the case of Base Rate loans, the applicable margin will vary
between 0% and 0.375% for the revolving credit loans, 0.0% and 0.75%
for Tranche A Term Loans and 1.0% for Tranche B Term Loans; and
-- in the case of Eurodollar Rate loans, the applicable margin will vary
between 0.75% and 1.375% for the revolving credit loans, 1.0% and
1.75% for Tranche A Term Loans and 2.0% for Tranche B Term Loans.
Collateral and Guarantees
Federal-Mogul, its U.S. subsidiaries and certain of its foreign
subsidiaries, have pledged or are in the process of pledging 100% (or, in the
case of the stock of certain foreign subsidiaries, 65%) of the capital stock of
certain of its subsidiaries and certain intercompany loans to secure the term
loans and revolving credit loans. Part of such collateral also secures certain
of Federal-Mogul's existing public debt and certain other indebtedness, and all
such collateral may be released when Federal-Mogul has obtained investment
grade ratings for its debt or met a certain leverage ratio. In addition, the
U.S. subsidiaries and certain of Federal-Mogul's foreign subsidiaries have
guaranteed the term loans and revolving credit loans and certain other
indebtedness. The stock of certain of Federal-Mogul's other subsidiaries may be
pledged in the future to secure the term loans and the revolving credit loans
and other indebtedness, and one or more of such other subsidiaries may also in
the future guarantee such indebtedness.
Certain Covenants
The Senior Credit Agreement contains certain covenants that restrict or
limit Federal-Mogul from taking various actions, including, subject to
specified exceptions,
. the granting of additional liens,
. the incurrence of additional indebtedness,
. the granting of additional guarantees,
. mergers, acquisitions and other fundamental corporate changes,
. the sale of assets,
. the payment of dividends and other restricted payments,
. the making of investments,
. optional prepayments of certain debt and the modification of debt
instruments,
. entering into sale and leaseback transactions,
. the imposition of restrictions on any subsidiary's ability to make
payments, loans or advances to us
. entering into a new debt agreement with more restrictive covenants and
. transactions with affiliates.
The Senior Credit Agreement also contains certain financial covenants that
require us to meet and maintain certain financial tests and minimum ratios,
including a minimum cash flow coverage ratio, a maximum consolidated leverage
ratio and a minimum consolidated net worth test.
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Events of Default
The Senior Credit Agreement contains customary events of default, including
nonpayment of principal, interest or fees, violation of covenants, inaccuracy
of representations or warranties in any material respect, cross acceleration
and cross default to certain other indebtedness, bankruptcy, noncompliance
with certain provisions of ERISA, material judgments, failure of the
collateral documents or subordination provisions, and change of control. The
occurrence of any of such events could result in acceleration of our
obligations under the Senior Credit Agreement and foreclosure on collateral
securing the term loans and revolving credit loans.
Fees
We currently pay a facility fee on the used and unused portion of each
lender's commitment to make revolving credit loans at the rate of 0.25% to
0.375% per annum, depending on our leverage ratio. In addition, we paid
customary fees to Chase and reimbursed customary expenses in connection with
the closing of the Senior Credit Agreement.
Repayments and Refinancing
We have the option to prepay without premium at any time the term loans and
the revolving credit loans.
DESCRIPTION OF THE NEW NOTES
The Old Notes were and the New Notes offered hereby will be issued under an
indenture (the "Indenture"), dated as of January 20, 1999 by and among
Federal-Mogul, the Guarantors and The Bank of New York, as Trustee (the
"Trustee"). References to the Notes include the New Notes unless the context
otherwise requires. Upon the issuance of the New Notes, if any, or the
effectiveness of a shelf registration statement, the Indenture will be subject
to the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
The definitions of certain capitalized terms used in the following summary are
set forth below under "Certain Definitions." For purposes of this section,
references to "Federal-Mogul" include only Federal-Mogul Corporation and not
its subsidiaries.
On January 20, 1999, we issued $1 billion aggregate principal amount of Old
Notes under the Indenture. The terms of the New Notes are identical in all
material respects to the Old Notes, except for certain transfer restrictions
and registration and other rights relating to the exchange of the Old Notes
for New Notes. The Trustee will authenticate and deliver New Notes for
original issue only in exchange for a like principal amount of Old Notes. Any
Old Notes that remain outstanding after the consummation of the exchange
offer, together with the New Notes, will be treated as a single class of
securities under the Indenture. Accordingly, all references herein to
specified percentages in aggregate principal amount of the outstanding New
Notes shall be deemed to mean, at any time after the exchange offer is
completed, such percentage in aggregate principal amount of the Old Notes and
New Notes then outstanding.
General
Principal and interest on the Notes will be payable, the transfer of the
Notes will be registrable, and the Notes may be exchanged or transferred, at
the office or agency of Federal-Mogul maintained for such purpose. The initial
office will be at the corporate trust office of the Trustee located at 101
Barclay Street, New York, New York 10286. However, at our option, payment of
interest may be made by check mailed to the address of the noteholders as such
address appears in the note register. If a noteholder has given wire transfer
instructions to us and our paying agent prior to the applicable record date
for such payment we will make payments with respect to the Notes by wire
transfer of immediately available funds to the account specified by such a
noteholder. No service charge will be made for any registration of transfer or
exchange of Notes, but we may require payment of a sum sufficient to cover any
transfer tax or other similar governmental charge payable in connection
therewith.
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The Notes will be issued in fully registered form without interest coupons,
in denominations of $250,000 and integral multiples of $1,000 in excess
thereof. The Notes will be represented by one or more registered notes in
global form and in certain circumstances may be represented by Notes in
definitive form. For more information, we refer you to "Book Entry; Delivery
and Form."
The 7 3/8% Notes and the 7 1/2% Notes are each referred to herein as a
"series" of Notes.
Certain Terms of the 7 3/8% Notes
The 7 3/8% Notes will be senior obligations of Federal-Mogul and limited to
$400,000,000 aggregate principal amount. The 7 3/8% Notes will mature on
January 15, 2006. The 7 3/8% Notes will not be entitled to the benefit of any
sinking fund.
The 7 3/8% Notes will bear interest at a rate of 7 3/8% from the date of
original issuance, payable on January 15 and July 15 of each year, commencing
January 15, 2000. We will make interest payments to the persons in whose name
the 7 3/8% Notes are registered on the preceding January 1 and July 1,
respectively. Interest will be computed on the basis of a 360-day year
comprised of twelve 30 day months.
Certain Terms of the 7 1/2% Notes
The 7 1/2% Notes will be senior obligations of Federal-Mogul and limited to
$600,000,000 aggregate principal amount. The 7 1/2% Notes will mature on
January 15, 2009. The 7 1/2% Notes will not be entitled to the benefit of any
sinking fund.
The 7 1/2% Notes will bear interest at a rate of 7 1/2% from the date of
original issuance, payable on January 15 and July 15 of each year, commencing
January 15, 2000. We will make interest payments to the persons in whose name
the 7 1/2% Notes are registered on the preceding January 1 and July 1,
respectively. Interest will be computed on the basis of a 360-day year
comprised of twelve 30 day months.
Optional Redemption
We may at our option redeem all or part of the Notes on at least 30 days,
but not more than 60 days, prior notice mailed to the registered address of
each holder of Notes. The redemption price will equal the greater of:
. 100% of the principal amount of the Notes of such series to be redeemed;
or
. the sum of the present values of the Remaining Scheduled Payments for
each series of the Notes discounted to the date of redemption, on a
semiannual basis (assuming a 360-day year consisting of twelve 30 day
months), at the Treasury Rate plus 50 basis points plus, in each case,
accrued interest thereon to the date of redemption.
"Treasury Rate" means an annual rate equal to the semiannual equivalent
yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date. The semiannual
equivalent yield to maturity will be computed as of the second business day
immediately preceding such redemption date.
"Comparable Treasury Issue" means the fixed rate United States Treasury
security selected by an Independent Investment Banker as having a maturity most
comparable to the remaining term of the 7 3/8% Notes or the 7 1/2% Notes as the
case may be (and which is not callable prior to maturity) to be redeemed that
would be utilized, at the time of selection and in accordance with customary
financial practices, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the Notes to be redeemed.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Company.
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"Comparable Treasury Price" means:
(i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on
the third business day preceding such redemption date, as set forth in the
daily statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities"; or
(ii) if such release (or any successor release) is not published or does
not contain such prices on such business day, (A) the average of the
Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest or lowest of such Reference Treasury Dealer
Quotations, or (B) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York
City time on the third business day preceding such redemption date.
"Reference Treasury Dealer" means each of Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Chase Securities Inc., Bear, Stearns & Co. Inc., Credit
Suisse First Boston Corporation, Morgan Stanley & Co. Incorporated and
NationsBanc Montgomery Securities LLC, and their respective successors. If any
of the foregoing shall cease to be a primary U.S. Government securities dealer
in New York City (a "Primary Treasury Dealer"), we will appoint in its place
another nationally recognized investment banking firm that is a Primary
Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to each Note to be
redeemed, the remaining scheduled payments of the principal thereof and
interest thereon that would be due after the related redemption date if such
Note were not redeemed. However, if such redemption date is not an interest
payment date with respect to such Note, the amount of the next succeeding
scheduled interest payment thereon will be reduced by the amount of interest
accrued thereon to such redemption date.
On and after the redemption date, interest will cease to accrue on the Notes
or any portion thereof called for redemption. On or before the redemption date,
we will deposit with a paying agent (or the Trustee) money sufficient to pay
the redemption price of and accrued interest on the Notes to be redeemed on
such date. If less than all of the 7 3/8% Notes or the 7 1/2% Notes, as the
case may be, are to be redeemed, the Trustee will select the Notes to be
redeemed by a method determined by the Trustee to be fair and appropriate.
Ranking
The Notes will rank equally with other existing and future unsubordinated,
unsecured indebtedness of Federal-Mogul. The Notes will rank senior in right of
payment to any future subordinated indebtedness of Federal-Mogul. However, so
long as any indebtedness under the Senior Credit Agreement (or any other credit
agreement renewing, refunding, replacing, restating, refinancing or extending
the Senior Credit Agreement) is secured by shares of capital stock or evidences
of indebtedness of any Restricted Subsidiary (as defined below), the Notes will
also be secured by such collateral.
The Notes benefit from the same collateral provisions as those applicable to
the $1 billion principal amount of notes of Federal-Mogul issued in June 1998.
Indebtedness incurred under the Senior Credit Agreement and certain other
indebtedness of Federal-Mogul are currently secured by pledges of shares of
capital stock of Restricted Subsidiaries as well as by security interests in
other collateral. The Notes will thus be currently secured by such pledges. The
Notes will not have
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the benefit of such other collateral. The Indenture does not contain any
restriction upon indebtedness, whether secured or unsecured, that we and our
subsidiaries may incur in the future. Federal-Mogul's creditors that are
secured by collateral which does not secure the Notes will have a claim on such
other collateral prior to any claims of holders of the Notes against such other
collateral. In the event Indebtedness incurred under the Senior Credit
Agreement (or substitute credit agreement described in the prior paragraph)
ceases for any reason to be secured by the collateral securing the Notes
(including at any time Federal-Mogul has obtained investment grade ratings for
its debt or met a certain leverage ratio), the Notes will also no longer be
secured by such collateral, whether or not Indebtedness incurred under the
Senior Credit Agreement or other Indebtedness is secured by any other
collateral. In such circumstance, the Notes will no longer be secured whether
or not a Default (as defined) or Event of Default (as defined) is then
outstanding for any reason.
As of March 31, 1999, the total amount of indebtedness secured by pledges of
capital stock of Restricted Subsidiaries, which will also secure the Notes, is
$3.342 billion. Of this amount, the total amount of Federal-Mogul's
indebtedness secured by collateral that will not secure the Notes is $1.087
billion.
The Guarantees
Our subsidiaries that have guaranteed indebtedness under the Senior Credit
Agreement will unconditionally guarantee on a joint and several basis all of
our obligations under the Indenture and the Notes. Each of the Guarantees shall
be a guarantee of payment and not of collection. The obligations of each
subsidiary guarantor under its guarantee (each a "Guarantee") are limited to
the maximum amount which can be guaranteed by such subsidiary guarantor without
resulting in the obligations of such subsidiary guarantor constituting a
fraudulent conveyance or fraudulent transfer under applicable federal or state
law. Despite this limitation, there is a risk that the Guarantees will involve
a fraudulent conveyance or transfer, and thus will be unenforceable.
The subsidiary guarantors will consist of the following subsidiaries:
. Federal-Mogul Dutch Holdings Inc., Federal-Mogul Global Inc., Federal-
Mogul U.K. Holdings Inc., F-M UK Holdings Limited, Carter Automotive
Company, Inc., Federal Mogul Venture Corporation, Federal-Mogul World
Wide, Inc., Federal-Mogul Global Properties, Inc., Felt Products Mfg.
Co., Federal-Mogul Ignition Company, Federal-Mogul Products, Inc. and
Federal-Mogul Aviation, Inc. (collectively, the "Guarantors").
Each subsidiary that becomes a guarantor under the Senior Credit Agreement
(or any other credit agreement renewing, refunding, replacing, restating,
refinancing or extending the Senior Credit Agreement), after the date of
the Indenture will become a Guarantor. If a subsidiary that is a Guarantor
ceases to be a guarantor under the Senior Credit Agreement (or substitute
credit agreement described in the prior sentence), such subsidiary will
also cease to be a Guarantor of the Notes, whether or not a Default or
Event of Default is then outstanding. A subsidiary may cease to be a
Guarantor upon sale or other disposal of such subsidiary or otherwise.
Federal-Mogul is not restricted from selling or otherwise disposing of any
of the Guarantors.
In addition to guaranteeing all indebtedness under the Senior Credit
Agreement, each Guarantor has also guaranteed certain other indebtedness,
including our $250,000,000 7 1/2% Notes due July 1, 2004, $400,000,000 7 3/4%
Notes due July 1, 2006, $350,000,000 7 7/8% Notes due July 1, 2010,
$125,000,000 8.8% Senior Notes due 2007 and $125,000,000 aggregate principal
amount of Medium-Term Notes. Certain guarantors of the indebtedness issued
under the Senior Credit Agreement have secured the Senior Credit Agreement
guarantees by pledges of capital stock of their own subsidiaries; some, but not
all, of such pledges may also secure the Notes.
If the Notes are defeased in accordance with the terms of the Indenture,
then the Guarantors will be released and discharged of their obligations under
the Guarantees.
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Certain Covenants
The covenants summarized below will be applicable to the Notes.
Limitation on Liens. The Indenture restricts Federal-Mogul's and its
Restricted Subsidiaries' ability to create or assume, any notes, bonds,
debentures or other similar evidences of Indebtedness secured by any mortgage,
pledge, security interest or lien (any such mortgage, pledge, security interest
or lien being referred to herein as a "Mortgage" or "Mortgages") of or upon
certain assets. If a Mortgage is created or assumed by Federal-Mogul or any
Restricted Subsidiary of or upon any Principal Property owned by Federal-Mogul
or by any Restricted Subsidiary or on shares of capital stock or evidence of
Indebtedness of any Restricted Subsidiary, then as long as such Indebtedness is
secured by the Mortgage, Federal-Mogul will cause all Notes (together with, at
our election, any other Indebtedness) to be secured by such a Mortgage equally
and ratably with (or prior to) any and all other Indebtedness thereby secured.
The foregoing will not apply to any of the following:
. Mortgages on any Principal Property, shares of stock or Indebtedness of
any corporation existing at the time such corporation becomes a
Subsidiary;
. Mortgages on any Principal Property, shares of stock or Indebtedness
acquired, constructed or improved by Federal-Mogul or any Restricted
Subsidiary after the date of the Indenture which are created or assumed
prior to or at the time of such acquisition, construction or improvement
or within 365 days after the acquisition, completion of construction or
improvement or commencement of commercial operation of such property, to
secure or provide for the payment of all or any part of the purchase
price or the cost of such construction or improvement thereof;
. Mortgages on any Principal Property, shares of stock or Indebtedness
existing at the time of acquisition thereof (including acquisition
through merger or consolidation);
. Mortgages on any Principal Property or shares of stock or Indebtedness
acquired from a corporation which is merged with or into Federal-Mogul or
a Restricted Subsidiary;
. Mortgages on any Principal Property, shares of stock or Indebtedness to
secure Indebtedness to Federal-Mogul or to a Restricted Subsidiary;
. Mortgages on any Principal Property, shares of stock or Indebtedness in
favor of the United States of America or any State thereof or The
Commonwealth of Puerto Rico, or any department, agency or instrumentality
or political subdivision of the United States of America or any State
thereof or The Commonwealth of Puerto Rico, to secure partial, progress,
advance or other payments, or to secure any Indebtedness incurred for the
purpose of financing all or any part of the cost of acquiring,
constructing or improving any Principal Property, shares of stock or
Indebtedness subject to such Mortgages (including Mortgages incurred in
connection with pollution control, industrial revenue, Title XI maritime
financings or similar financings), or other Mortgages in connection with
the issuance of tax-exempt industrial revenue bonds;
. Mortgages existing as of the date of the Indenture;
. Mortgages for taxes, assessments or other government charges, the
validity of which is being contested in good faith by appropriate
proceedings and materialmen's, mechanics' and other like Mortgages, or
deposits to obtain the release of such Mortgages;
. Mortgages created or deposits made to secure the payment of workers'
compensation claims or the performance of, or in connection with,
tenders, bids, leases, public or statutory obligations, surety and appeal
bonds, contracts, performance and return-of-money bonds or to secure (or
in lieu of) surety or appeal bonds and Mortgages made in the ordinary
course of business for similar purposes; and
. any extension, renewal or replacement of any Mortgage referred to in the
foregoing nine bullets above. However, such extension, renewal or
replacement shall be limited to the property, shares of stock or
Indebtedness which secured the Mortgage so extended, renewed or replaced
(plus improvements on such property).
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Federal-Mogul or any Restricted Subsidiary may create or assume Mortgages in
addition to those permitted above, and renew, extend or create such Mortgages,
provided, that at the time of such creation, assumption, renewal or
replacement, and after giving effect thereto, the aggregate amount of all
Indebtedness so secured by a Mortgage (without regard to Indebtedness permitted
in the ten bullets above), plus all Attributable Debt of Federal-Mogul and its
Restricted Subsidiaries in respect of Sale and Lease-Back Transactions (as
hereinafter defined) which would not be permitted by either of the first two
bullets of the first paragraph under "--Limitation on Sale and Lease-Back
Transactions," does not exceed 20% of Consolidated Assets.
Limitation on Sale and Lease-Back Transactions. Federal-Mogul will not, nor
will it permit any Restricted Subsidiary to lease any Principal Property owned
by Federal-Mogul or such Restricted Subsidiary (except for leases for a term of
not more than three years), which has been or is to be sold or transferred by
Federal-Mogul or such Restricted Subsidiary on the security of such Principal
Property more than 365 days after the acquisition thereof or the completion of
construction and commencement of full operation thereof (a "Sale and Lease-Back
Transaction"), unless either:
. Federal-Mogul or such Restricted Subsidiary would be entitled pursuant to
the limitation on liens covenant described above to incur Indebtedness
secured by a Mortgage on the Principal Property to be leased back equal
in amount to the Attributable Debt with respect to such Sale and Lease-
Back Transaction without equally and ratably securing the Notes; or
. Federal-Mogul applies an amount equal to the greater of the net proceeds
or the fair value (as determined by our Board of Directors) of the
property so sold to the purchase of Principal Property or to the
retirement (other than any mandatory retirement), within 365 days of the
effective date of any such Sale and Lease-Back Transaction, of Notes or
other Funded Indebtedness. Any such retirement of Notes shall be made in
accordance with the Indenture. The amount to be applied to such
retirement of Notes or other Funded Indebtedness shall be reduced by an
amount equal to the sum of:
-- an amount equal to the principal amount of any Notes delivered within
365 days after the effective date of such Sale and Lease-Back
Transaction to the Trustee for retirement and cancellation, and
-- the principal amount of other Funded Indebtedness voluntarily retired
by Federal-Mogul within such 365-day period, excluding, in each case,
retirements pursuant to mandatory sinking fund or prepayment
provisions and payments at Maturity.
Federal-Mogul or any Restricted Subsidiary may enter into Sale and Lease-
Back Transactions in addition to any permitted by the immediately preceding
paragraph and without any obligation to retire any Notes or other Indebtedness
if at the time of entering into such Sale and Lease-Back Transaction and after
giving effect thereto, Attributable Debt resulting from such Sale and Lease-
Back Transaction, plus the aggregate amount of all Indebtedness secured by a
Mortgage (not including Indebtedness excluded as provided in the first ten
bullets above under "--Limitation on Liens"), does not exceed 20% of
Consolidated Assets.
Certain Definitions
"Attributable Debt," when used in connection with a Sale and Lease-Back
Transaction, shall mean, as of any particular time, the lesser of:
. the fair value (as determined by the Board of Directors) of the property
subject to such arrangement; and
. the then present value (computed by discounting at the Composite Rate) of
the obligation of a lessee for net rental payments during the remaining
term of any lease in respect of such property (including any period for
which such lease has been extended or may, at the option of the lessor,
be extended). The terms "net rental payments" under any lease for any
period means the sum of the rental payments required to be paid in such
period by the lessee thereunder, not including, however, any amounts
required to be paid by such lessee (whether or not designated as rental
or additional rental) on account
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of maintenance and repairs, insurance, taxes, assessments, water rates or
similar charges required to be paid by such lessee thereunder or any
amounts required to be paid by such lessee thereunder contingent upon the
amount of sales, maintenance and repairs, insurance, taxes, assessments,
water rates or similar charges.
"Consolidated Assets" means Federal Mogul's assets, determined in accordance
with GAAP and consolidated for financial reporting purposes in accordance with
GAAP, such assets to be valued at book value.
"Funded Indebtedness" means all of Federal-Mogul's Indebtedness and the
Indebtedness of its Restricted Subsidiaries maturing by its terms more than one
year after, or which is renewable or extendable at our option for a period
ending more than one year after, the date as of which Funded Indebtedness is
being determined.
"GAAP" means such accounting principles as are generally accepted in the
United States at the date of the Indenture.
"Indebtedness" means, without duplication:
. all obligations in respect of borrowed money or for the deferred purchase
or acquisition price of property (including all types of real, personal,
tangible, intangible or mixed property) or services (excluding trade
accounts payable, deferred taxes and accrued liabilities which arise in
the ordinary course of business) which are, in accordance with GAAP,
includible as a liability on a balance sheet consolidated for financial
reporting purposes in accordance with GAAP;
. all amounts representing the capitalization of rental obligations in
accordance with GAAP; and
. all Contingent Obligations with respect to the foregoing.
For purposes of the third bullet above, "Contingent Obligation" means, as
to any Person, any obligation of such Person guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations
("primary obligations") of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent:
-- to purchase any such primary obligation or any property constituting
direct or indirect security therefor;
-- to advance or supply funds (1) for the purchase or payment of any
such primary obligation or (2) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor;
-- to purchase property, securities or services primarily for the
purpose of assuring the beneficiary of any such primary obligation
of the ability of the primary obligor to make payment of such
primary obligation; or
-- otherwise to assure or hold harmless the beneficiary of such primary
obligation against loss in respect thereof;
provided, however, that the term "Contingent Obligation" shall not include the
endorsement of instruments for deposit or collection in the ordinary course of
business. The term "Contingent Obligation" shall also include the liability of
a general partner in respect of the primary obligations of a partnership in
which it is a general partner. The amount of any Contingent Obligation of a
Person shall be deemed to be an amount equal to the principal amount of the
primary obligation in respect to which such Contingent Obligation is made.
"Principal Property" means the principal manufacturing facilities owned by
Federal-Mogul or a Restricted Subsidiary located in the United States, except
such as the Board of Directors, in its good faith opinion, reasonably
determines is not significant to the business, financial condition and earnings
of Federal-Mogul and its consolidated Subsidiaries taken as a whole, as
evidenced by a Board resolution, and except for:
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. any and all personal property including, without limitation, (a) motor
vehicles and other rolling stock, and (b) office furnishings and
equipment and information and electronic data processing equipment;
. any property financed through obligations issued by a state, territory or
possession of the United States, or any political subdivision or
instrumentality of the foregoing; or
. any real property held for development or sale.
"Restricted Subsidiary" means any consolidated Subsidiary that owns any
Principal Property.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by Federal-Mogul or by one or
more other Subsidiaries, or by Federal-Mogul 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.
Defeasance and Covenant Defeasance
Federal-Mogul may elect either:
. to defease and be discharged from any and all obligations with respect to
the Notes of any series ("defeasance"); or
. to be released from its obligations with respect to the restrictive
covenants described herein under "--Certain Covenants" with respect to
the Notes of any series ("covenant defeasance").
In order to exercise either defeasance or covenant defeasance:
-- Federal-Mogul must deposit with the Trustee (or other qualifying
trustee), in trust, money and/or Government Obligations which
through the payment of principal and interest in accordance with
their terms will provide money in an amount sufficient, without
reinvestment, to pay the principal of and any premium or interest on
such Notes to Maturity or redemption;
-- Federal-Mogul must deliver to the Trustee an opinion of counsel to
the effect that the holders of such Notes will not recognize income,
gain or loss for United States federal income tax purposes as a
result of such defeasance or covenant defeasance and will be subject
to United States federal income tax on the same amounts and in the
same manner and at the same times as would have been the case if
such deposit, defeasance and discharge had not occurred. Such
opinion of counsel, in the case of defeasance under the first bullet
above, must refer to and be based upon a ruling of the Internal
Revenue Service or a change in applicable United States federal
income tax law occurring after the date of the relevant Indenture.
Federal-Mogul may exercise its defeasance option with respect to such Notes
notwithstanding its prior exercise of its covenant defeasance option. If
Federal-Mogul exercises its defeasance option, payment of such Notes may not be
accelerated because of an Event of Default. If Federal-Mogul exercises its
covenant defeasance option, payment of such Notes may not be accelerated by
reason of a Default or an Event of Default with respect to the covenants to
which such covenant defeasance is applicable. However, if such acceleration
were to occur by reason of another Event of Default, the realizable value at
the acceleration date of the money and Government Obligations in the defeasance
trust could be less than the principal and interest then due on such Notes,
since the required deposit in the defeasance trust is based upon scheduled cash
flow rather than market value, which will vary depending upon interest rates
and other factors.
Payment, Registration, Transfer and Exchange
Payments in respect of the Notes will be made at the office or agency
maintained by us for that purpose as we may designate from time to time.
However, at our option, interest payments on Notes may be made by
check mailed to the address of the person entitled thereto as specified in the
note register. If a holder of Notes
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has given wire transfer instructions to us and our paying agent prior to the
applicable record date for such payment, we will make payments with respect to
the Notes by wire transfer of funds to the account specified by such a
noteholder. Payment of any installment of interest will be made to the person
in whose name such Note is registered at the close of business on the regular
record date for such interest.
The Notes will be transferable or exchangeable at the agency maintained by
us for such purpose as designated by us from time to time. Notes may be
transferred or exchanged without service charge, other than any tax or other
governmental charge imposed in connection therewith.
Consolidation, Merger or Sale by Federal-Mogul
Federal-Mogul shall not consolidate with or merge into any other corporation
or transfer or lease all or substantially all of its assets, unless:
. the corporation formed by such consolidation or into which Federal-Mogul
is merged or the corporation which acquires its assets is organized in
the United States;
. the corporation formed by such consolidation or into which Federal-Mogul
is merged or which acquires its assets expressly assumes all of the
obligations of Federal-Mogul under the Indenture;
. immediately after giving effect to such transaction, no Default or Event
of Default exists; and
. if, as a result of such transaction, Federal-Mogul's properties or assets
would become subject to an encumbrance which would not be permitted by
the terms of the Notes, Federal-Mogul or the successor corporation shall
take such steps as are necessary to secure such Notes equally and ratably
with all indebtedness secured thereunder.
Upon any such consolidation, merger or sale, the successor corporation formed
by such consolidation, or into which Federal-Mogul is merged or to which such
sale is made, shall succeed to, and be substituted for Federal-Mogul under the
Indenture.
Events of Default, Notice and Certain Rights on Default
If an Event of Default occurs with respect to the Notes of any series and is
continuing, the Trustee or the holders of at least 25% in aggregate principal
amount of all of the outstanding Notes of such series, by written notice to us
(and to the Trustee, if notice is given by such holders of Notes), may declare
the principal of, and accrued interest, if any, on all the Notes of such series
to be due and payable.
Events of Default with respect to the Notes of each series are defined in
the Indenture as being:
. default for 30 days in payment of any interest on any Note of such series
when due and payable;
. default in payment of principal, or premium, if any, at maturity or on
redemption or otherwise of any Notes of such series when due;
. default for 60 days after notice to us by the Trustee, or to us and the
Trustee by the holders of at least 25% in aggregate principal amount of
the Notes of such series then outstanding, in the performance of any
covenant with respect to the Notes of such series;
. default with respect to other indebtedness of Federal-Mogul for borrowed
money in an aggregate principal amount of at least $25 million, which
default shall constitute a failure to pay any portion of the principal
when due and payable after the expiration of an applicable grace period
with respect thereto or shall result in an acceleration thereof and such
acceleration is not rescinded or annulled or such debt shall not be paid
in full within 30 days after the written notice thereof to us by the
Trustee or to us and the Trustee by the holders of 25% in aggregate
principal amount of the Notes of such series then outstanding, provided
that such Event of Default will be remedied, cured or waived if such
default under such other agreement is remedied, cured or waived; and
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. certain events of bankruptcy, insolvency or reorganization of Federal-
Mogul.
The definition of "Event of Default" in the Indenture specifically excludes a
default under a secured debt under which the obligee has recourse (exclusive of
recourse for ancillary matters such as environmental indemnities,
misapplication of funds, costs of enforcement, etc.) only to the collateral
pledged for repayment, and where the fair market value of such collateral does
not exceed two percent of Total Assets (as defined in the Indenture) at the
time of the default.
The Trustee will, within 90 days after the occurrence of a Default with
respect to the Notes of any series, give to the holders of the Notes of such
series notice of all Defaults known to it unless such Default shall have been
cured or waived. However, the Trustee may withhold the notice (except in the
case of a Default in payment on the Notes of such series) if and so long as it
determines in good faith that withholding such notice is in the interests of
the holders of the Notes of such series. "Default" means any event which is, or
after notice or passage of time or both, would be, an Event of Default.
The holders of a majority in aggregate principal amount of the Notes of each
series affected (with each series voting as a class) may, subject to certain
limited conditions, direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on such Trustee.
We will file annually with the Trustee a certificate as to our compliance
with all conditions and covenants of such Indenture.
The holders of a majority in aggregate principal amount of Notes of any
series then outstanding, by notice to the Trustee may waive, on behalf of the
holders of all Notes of such series, any past Default or Event of Default with
respect to such series and its consequences except (i) a Default or Event of
Default in the payment of the principal of, premium, if any, or interest, if
any, on any Note of such series, or (ii) an Event of Default resulting from the
breach of a covenant or provision of the Indenture which, pursuant to the
Indenture, cannot be amended or modified without the consent of the holder of
each outstanding Note of such series.
Modification of the Indentures
The Indenture may be modified without the consent of the holders of any of
the Notes in order:
. to evidence the succession of another corporation to Federal-Mogul and
the assumption of the covenants and its obligations by a successor to
Federal-Mogul;
. to add to Federal-Mogul's covenants or to surrender any of its rights or
powers;
. to add additional Events of Default with respect to any series of the
Notes;
. to add, change or eliminate any provision affecting only Notes not yet
issued;
. to secure the Notes;
. to establish the form or terms of Notes;
. to evidence and provide for successor Trustees;
. if allowed without penalty under applicable laws and regulations, to
permit payment in respect of Notes in bearer form in the United States;
. to correct any defect or supplement any inconsistent provisions or to
make any other provisions with respect to matters or questions arising
under such Indenture, provided that such action does not adversely affect
the interests of the holders of Notes affected thereby;
. to cure any ambiguity or correct any mistake;
. to add a Guarantor, or remove a Guarantor in respect of any series which,
in accordance with the terms of the Indenture, is no longer liable on its
Guarantee; or
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. to provide for the issuance of the exchange securities of any series.
The Indenture also may be modified, with the consent of the holders of a
majority in aggregate principal amount of the outstanding Notes of any series
affected thereby (with Notes of each series voting as a class), except that,
without the consent of the holder of each Note affected thereby, no such
supplemental indenture may:
. change the time for payment of principal or premium, if any, or interest,
if any, on any Note;
. reduce the principal of, or the rate of interest, or premium, if any, on
any Note, or change the manner in which the amount of any of the
foregoing is determined;
. reduce the amount of premium, if any, payable upon the redemption of any
Note;
. impair the right to institute suit for the enforcement of any payment on
or with respect to any Note;
. reduce the percentage in principal amount of the outstanding Notes
affected thereby, the consent of whose holders is required for
modification or amendment of such Indenture or for waiver of compliance
with certain provisions of the Indenture or for waiver of certain
defaults;
. change our obligation to maintain an office or agency in the places and
for the purposes specified in such Indenture; or
. modify the provisions relating to waiver of certain defaults or any of
the foregoing provisions.
The Trustee
We may maintain banking and other commercial relationships with the Trustee.
Governing Law
The Notes and the Indenture will be governed by and construed in accordance
with the laws of the State of New York.
BOOK-ENTRY; DELIVERY AND FORM
Except as described below under "--Certificated Notes", the New Notes issued
in exchange for the Old Notes currently represented by one or more fully
registered global notes will be represented by one or more permanent global
certificates in definitive, fully registered form (the "Global Notes"). The
Global Notes will be deposited upon issuance with, or on behalf of, The
Depository Trust Company ("DTC").
The Old Notes were offered and sold solely (i) to "qualified institutional
buyers," as defined in Rule 144A under the Securities Act ("QIBs"), pursuant to
Rule 144A (ii) in offshore transactions to persons other than "U.S. persons,"
as defined in Regulation S under the Securities Act ("Non-U.S. Persons"), in
reliance on Regulation S and (iii) to institutional "accredited investors," as
defined in Rule 501 (a)(1), (2), (3) and (7) under the Securities Act of 1933
("Institutional Accredited Investors"), that were not QIBs.
The Old Global Notes
Rule 144A Global Notes. The Old Notes offered and sold to QIBs pursuant to
Rule 144A were issued in the form of one global note, without interest coupons
(each, a "Rule 144A Global Note"). The Rule 144A Global Note of each series
were deposited on the date of the closing of the sale of the Old Notes with, or
on behalf of, DTC and registered in the name of Cede & Co., as nominee of DTC.
The Rule 144A Global Note remains in the custody of the Trustee pursuant to the
Balance Certificate Agreement between DTC and the Trustee.
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Regulation S Global Notes. The Old Notes offered and sold in offshore
transactions to Non-U.S. Persons in reliance on Regulation S were issued in the
form of a global note without interest coupons (each, a "Regulation S Temporary
Global Note"). Beneficial interests in the Regulation S Temporary Global Note
for each series are exchanged for beneficial interests in a corresponding
permanent global note (each, a "Regulation S Permanent Global Note" and
together with the Regulation S Temporary Global Note, the "Regulation S Global
Notes" for such series) (i) within a reasonable period after the 40th day after
the later of the commencement of the offering of the Old Notes and the closing
date of the offering of the Old Notes and (ii) upon certification that the
beneficial interests in the Regulation S Temporary Global Note are owned by
either Non-U.S. Persons or U.S. persons who purchased such interests pursuant
to an exemption from, or in transactions not subject to, the registration
requirements of the Securities Act of 1933.
Each Regulation S Global Note was deposited upon issuance with a custodian
for DTC in the manner described in the preceding paragraph for credit to the
respective accounts of the purchasers at Morgan Guaranty Trust Company of New
York, Brussels Office, as operator of the Euroclear System ("Euroclear"), or
Cedel Bank, societe anonyme ("Cedel").
Investors may hold their interests in each Regulation S Global Note directly
through Euroclear or Cedel, if they are participants in such systems,
indirectly through organizations that are participants in such systems or
through organizations other than Euroclear or Cedel that are participants in
the DTC system. Euroclear and Cedel will hold such interests in the Regulation
S Global Note on behalf of their participants through customers' securities
accounts in their respective names on the books of the respective depositaries.
Such depositaries, in turn, will hold such interests in the Regulation S Global
Note in customers' securities accounts in the depositaries' names on the books
of DTC.
The New Global Notes
Except as set forth below, the Global Notes may be transferred, in whole and
not in part, solely to another nominee of DTC or to a successor of DTC or its
nominee. Beneficial interests in the Global Notes may not be exchanged for
Notes in physical, certificated form except in the limited circumstances
described below. The New Notes will be freely transferrable and will not bear a
restrictive legend.
All interests in the Global Notes, including those held through Euroclear or
Cedel, may be subject to the procedures and requirements of DTC. Those
interests held through Euroclear or Cedel may also be subject to the procedures
and requirements of such systems.
Certain Book-Entry Procedures for the Global Notes
The descriptions of the operations and procedures of DTC, Euroclear and
Cedel set forth below are provided solely as a matter of convenience. These
operations and procedures are solely within the control of the respective
settlement systems and are subject to change by them from time to time. Neither
Federal-Mogul, nor any initial purchaser takes any responsibility for these
operations, and you are urged to contact the relevant system or its
participants directly to discuss these matters.
DTC
DTC has advised us that it is:
. a limited purpose trust company organized under the laws of the State of
New York,
. a "banking organization" within the meaning of the New York Banking Law,
. a member of the Federal Reserve System,
. a "clearing corporation" within the meaning of the Uniform Commercial
Code, as amended, and
. a "clearing agency" registered pursuant to Section 17A of the Exchange
Act.
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DTC was created to hold securities for its participants and facilitate the
clearance and settlement of securities transactions between DTC participants
through electronic book-entry changes in the accounts of its participants,
thereby eliminating the need for physical transfer and delivery of
certificates. DTC's participants include securities brokers and dealers
(including the initial purchasers of the Old Notes), banks and trust companies,
clearing corporations and certain other organizations. Indirect access to DTC's
system is also available to other entities such as banks, brokers, dealers and
trust companies (collectively, the "Indirect Participants") that clear through
or maintain a custodial relationship with a DTC participant, either directly or
indirectly. Investors who are not DTC participants may beneficially own
securities held by or on behalf of DTC only through DTC participants or
Indirect Participants.
Cedel
Cedel advises that it is incorporated under the laws of Luxembourg as a
professional depositary. Cedel holds securities for its participating
organizations and facilitates the clearance and settlement of securities
transactions between Cedel participants through electronic book-entry changes
in accounts of Cedel participants, thereby eliminating the need for physical
movement of certificates. Cedel provides to Cedel participants, among other
things, services for safekeeping, administration, clearance and settlement of
internationally traded securities and securities lending and borrowing. Cedel
interfaces with domestic markets in several countries. As a professional
depositary, Cedel is subject to regulation by the Luxembourg Monetary
Institute. Cedel participants are recognized financial institutions around the
world, including underwriters, securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations and may
include the initial purchasers. Indirect access to Cedel is also available to
others, such as banks, brokers, dealers and trust companies that clear through
or maintain a custodial relationship with a Cedel participant either directly
or indirectly.
Euroclear
Euroclear advises that it was created to hold securities for participants of
Euroclear and to clear and settle transactions between Euroclear participants
through simultaneous electronic book-entry delivery against payment, thereby
eliminating the need for physical movement of certificates and any risk for
lack of simultaneous transfers of securities and cash. Euroclear includes
various other services, including securities lending and borrowing and
interfaces with domestic markets in several countries. Euroclear is operated by
the Brussels, Belgium office of Morgan Guaranty Trust Company of New York (the
"Euroclear Operator"), under contract with Euro-clear Clearance Systems S.C., a
Belgian cooperative corporation (the "Cooperative"). All operations are
conducted by the Euroclear Operator, and all Euroclear securities clearance
accounts and Euroclear cash accounts are accounts with the Euroclear Operator,
not the Cooperative. The Cooperative establishes policy for Euroclear on behalf
of Euroclear participants. Euroclear participants include banks (including
central banks), securities brokers and dealers and other professional financial
intermediaries and may include the initial purchasers of the Old Notes.
Indirect access to Euroclear is also available to other firms that clear
through or maintain a custodial relationship with a Euroclear participant,
either directly or indirectly.
The Euroclear Operator is the Belgian branch of a New York banking
corporation which is a member bank of the Federal Reserve System. As such, it
is regulated and examined by the Board of Governors of the Federal Reserve
System and the New York State Banking Department, as well as the Belgian
Banking Commission.
Securities clearance accounts and cash accounts with the Euroclear Operator
are governed by the Terms and Conditions Governing Use of Euroclear and the
related Operating Procedures of the Euroclear System, and applicable Belgian
law (collectively, the "Terms and Conditions"). The Terms and Conditions govern
transfers of securities and cash within Euroclear, withdrawals of securities
and cash from Euroclear, and receipts of payments with respect to securities in
Euroclear. All securities in Euroclear are held on a fungible basis without
attribution of specific certificates to specific securities clearance accounts.
The Euroclear Operator acts under the Terms and Conditions only on behalf of
the Euroclear participants, and has no record of or relationship with persons
holding through Euroclear participants.
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Book-Entry System
We expect that pursuant to procedures established by DTC;
. upon deposit of each Global Note, DTC will credit the accounts of DTC
participants designated by the initial purchasers with an interest in the
Global Note; and
. ownership of the Notes will be shown on, and the transfer of ownership
thereof will be effected only through, records maintained by DTC (with
respect to the interests of DTC participants) and the records of DTC
participants and the Indirect Participants (with respect to the interests
of persons other than DTC participants).
The laws of some jurisdictions may require that certain purchasers of
securities take physical delivery of such securities in definitive form. The
ability to transfer interests in the Notes represented by a Global Note to such
persons may be limited. In addition, because DTC can act only on behalf of DTC
participants, the ability of a person having an interest in Notes represented
by a Global Note to pledge or transfer such interest to persons or entities
that do not participate in DTC's system may be affected by the lack of a
physical definitive security in respect of such interest.
So long as DTC or its nominee is the registered owner of a Global Note, DTC
or such nominee will be considered the sole record owner or holder of the Notes
represented by the Global Note for all purposes under the Indenture and the
Notes. Except as provided below, owners of beneficial interests in a Global
Note:
. will not be entitled to have Notes represented by such Global Note
registered in their names;
. will not be entitled to receive physical delivery of certificated notes;
and
. will not be considered the owners or holders thereof under the Indenture
for any purpose, including with respect to the giving of any direction,
instruction or approval to the Trustee thereunder.
Each holder owning a beneficial interest in a Global Note must rely on the
procedures of DTC and on the procedures of the DTC participants to exercise any
rights of a holder of Notes.
Under current industry practice, in the event that Federal-Mogul requests
any action of holders of Notes, or in the event that an owner of a beneficial
interest in a Global Note desires to take any action that DTC, as holder of
such Global Note, is entitled to take, DTC would authorize the DTC participants
to take such action and the DTC participants would authorize holders owning
through such DTC participants to take such action or would otherwise act upon
the instruction of such holders. Neither Federal-Mogul nor the Trustee will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of Notes by DTC, or for maintaining, supervising or
reviewing any records of DTC relating to such Notes.
Payments with respect to the principal of, and premium, if any, and interest
on any Notes represented by a Global Note registered in the name of DTC or its
nominee on the applicable record date will be payable by the Trustee to or at
the direction of DTC or its nominee, in its capacity as the registered holder
of the Global Note representing such Notes. Federal-Mogul and the Trustee may
treat the persons in whose names the Notes, including the Global Notes, are
registered as the owners thereof for the purpose of receiving payment thereon
and for any and all other purposes whatsoever. Accordingly, neither Federal-
Mogul nor the Trustee has or will have any responsibility or liability for the
payment of such amounts to owners of beneficial interests in a Global Note
(including principal, premium, if any, and interest). Federal-Mogul expects
that DTC or its nominee, upon receipt of any payment of principal of, premium,
if any, and interest in respect of the Global Notes will credit DTC
participants' accounts with payments in amounts proportionate to their
respective beneficial ownership interests in the principal amount of such
Global Note, as shown on the records of DTC or its nominee. We also expect that
payments by the DTC participants and the Indirect Participants to the owners of
beneficial interests in a Global Note will be governed by standing instructions
and customary industry practice and will be the responsibility of DTC
participants or the Indirect Participants and DTC.
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Transfers between DTC participants will be effected in accordance with DTC's
procedures, and will be settled in same-day funds. Transfers between Euroclear
participants or Cedel participants will be effected in the ordinary way in
accordance with their respective rules and operating procedures.
Subject to compliance with the transfer restrictions applicable to the Old
Notes, cross-market transfers between the DTC participants, on the one hand,
and Euroclear participants or Cedel participants, on the other hand, will be
effected through DTC in accordance with the DTC's rules on behalf of Euroclear
or Cedel, as the case may be, by its respective depositary. However, such
cross-market transactions will require delivery of instructions to Euroclear or
Cedel by the counterparty in such system in accordance with the rules and
procedures and within the established deadlines (Brussels time) of such system.
Euroclear or Cedel will, if the transaction meets its settlement requirements,
deliver instructions to its respective depositary to take action to effect
final settlement on its behalf by delivering or receiving interests in the
relevant Global Notes in DTC, and making or receiving payment in accordance
with normal procedures for same-day funds settlement applicable to DTC.
Euroclear participants and Cedel participants may not deliver instructions
directly to the depositaries for Euroclear or Cedel.
Because of time zone differences, the securities account of a Euroclear
participant or Cedel participant in an interest in a Global Note from a DTC
participant will be credited, and any such crediting will be reported to the
relevant Euroclear participant or Cedel participant, during the securities
settlement processing day (which must be a business day for Euroclear and
Cedel) immediately following the DTC settlement date. Cash received in
Euroclear or Cedel as a result of sales of interest in a Global security by or
through a Euroclear participant or Cedel participant to a DTC participant will
be received for value on the settlement date of DTC but will be available in
the relevant Euroclear or Cedel cash account only as of the business day for
Euroclear or Cedel following DTC's settlement date.
DTC has advised us that DTC will take any action permitted to be taken by a
holder of Notes (including the presentation of Notes for exchange as described
below) only at the direction of one or more DTC participants to whose account
the DTC interests in the Global Notes are credited and only in respect of such
portion of the aggregate principal amount of Notes as to which such DTC
participant or DTC participants has or have given such direction. However, if
there is an Event of Default under the Indenture, DTC will exchange the Global
Notes for certificated notes.
Although DTC, Euroclear and Cedel have agreed to the foregoing procedures to
facilitate transfers of interests in the in the Global Notes among participants
in DTC, Euroclear and Cedel, they are under no obligation to perform or to
continue to perform such procedures, and such procedures may be discontinued at
any time. Neither Federal-Mogul nor the Trustee will have any responsibility
for the performance by DTC, Euroclear or Cedel or their respective participants
or indirect participants of their respective obligations under the rules and
procedures governing their operations.
Certificated Notes
If:
. we notify the Trustee in writing that DTC is no longer willing or able to
act as a depositary or DTC ceases to be registered as a clearing agency
under the Exchange Act of 1934 and a depositary is not appointed within
90 days of such notice or cessation;
. we at our option notify the Trustee in writing that we elect to cause the
issuance of Notes of any series in definitive form under the Indenture;
or
. upon the occurrence of certain other events as provided in the Indenture;
then, upon surrender by DTC of the Global Notes of any series, certificated
notes will be issued to each person that DTC identifies as the beneficial owner
of the Notes represented by the Global Notes of such series. Upon any issuance,
the Trustee is required to register such certificated notes in the name of such
person or persons and cause the same to be delivered thereto.
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New Notes issued in exchange for Old Notes that were originally purchased by
or transferred to Institutional Accredited Investors who are not QIBs will be
in registered form without interest coupons. Upon the transfer to a QIB or Non-
U.S. Person, such certificated notes will, unless the Global Notes have been
previously exchanged for certificated notes, be exchanged for an interest in
the Global Note representing the principal amount of Notes being transferred.
Neither we nor the Trustee shall be liable for any delay by DTC or any DTC
participant or Indirect Participant in identifying the beneficial owners of the
related Notes and each such person may conclusively rely on, and shall be
protected in relying on, instructions from DTC for all purposes (including with
respect to the registration and delivery, and the respective principal amounts,
of the Notes to be issued).
MATERIAL FEDERAL TAX CONSIDERATIONS
The following is a summary of the material United States federal income tax
consequences from the exchange offer and from the ownership of the New Notes.
It deals only with New Notes held as capital assets and not with special
classes of noteholders, such as dealers in securities or currencies, life
insurance companies, tax exempt entities, and persons that hold a New Note in
connection with an arrangement that completely or partially hedges the New
Note. Further, the discussion does not address all aspects of taxation that
might be relevant to particular noteholders in light of their individual
circumstances. The discussion is based upon the Internal Revenue Code of 1986,
as amended (the "Code"), and regulations, rulings and judicial decisions
thereunder as of the date hereof. Such authorities may be repealed, revoked or
modified so as to produce federal income tax consequences different from those
discussed below.
Except as the context otherwise requires, reference in this section to the
Notes shall apply to both the Old Notes and the New Notes.
For purposes of the following discussion, a "United States Holder" means a
beneficial owner of a Note who or which is, for United States federal income
tax purposes: (1) a citizen or resident of the United States; (2) a
partnership, corporation or other entity created or organized in or under the
law of the United States or of any State of the United States; (3) an estate,
the income of which is subject to United States federal income tax regardless
of its source; (4) a trust classified as a United States person for United
States federal income tax purposes. A "United States Alien Holder" is a
beneficial owner of a Note that, for United States federal income tax purposes,
is not a United States Holder.
Noteholders tendering their Old Notes or prospective purchasers of New Notes
should consult their own tax advisors concerning the United States federal
income tax and any state or local income or franchise tax consequences in their
particular situations and any consequences under the laws of any other taxing
jurisdiction.
Exchange of Old Notes for New Notes
The exchange of Old Notes for New Notes pursuant to the exchange offer will
not be treated as an "exchange" for United States federal income tax purposes
because the New Notes will not be considered to differ materially in kind or
extent from the Old Notes. Rather, the New Notes received by a noteholder will
be treated as a continuation of the Old Notes in the hands of such noteholders.
The adjusted basis and holding period of the New Notes for any noteholder will
be the same as the adjusted basis and holding period of the Old Notes.
Similarly, there will be no United States federal income tax consequences to a
holder of Old Notes that does not participate in the exchange offer.
Payments of Interest
Payments of stated interest on a New Note generally will be taxable to a
United States Holder as ordinary interest income at the time it is received or
accrued, depending on the United States Holder's method of accounting for tax
purposes.
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Sale, Exchange, Redemption or Retirement
Upon the sale, exchange, redemption or retirement of a Note, a United States
Holder will recognize taxable gain or loss equal to the difference between the
amount realized on such sale, exchange, redemption or retirement (not including
any amount attributable to accrued but unpaid interest not previously included
in gross income) and such Holder's adjusted tax basis in the Note. To the
extent attributable to accrued but unpaid interest not previously included in
gross income, the amount recognized by the United States Holder will be treated
as a payment of interest. See "--Payments of Interest" above. Gain or loss
recognized on the sale, exchange, redemption or retirement generally will be
capital gain or loss. The deductibility of capital losses is subject to
limitations.
Market Discount and Premium
United States Holders that did not acquire their interest in the New Notes
pursuant to an acquisition of Old Notes on their original issue at their
original offering price or pursuant to an exchange of such Old Notes for New
Notes pursuant to the exchange offer may be considered to have acquired their
New Notes with market discount or amortizable bond premium as such terms are
defined for United States federal income tax purposes. Such Holders should
consult their tax advisors as to the federal income tax consequences of the
market discount and premium rules of the Code.
Tax Consequences to United States Alien Holders
Under present United States federal income tax law, and subject to the
discussion below concerning backup withholding:
(a) payments of principal and interest on a Note by us or any paying
agent to a United States Alien Holder will not be subject to withholding of
United States federal income tax, provided that, in the case of interest,
(i) such Holder does not own, actually or constructively, 10 percent or
more of the total combined voting power of all classes of our stock
entitled to vote, (ii) such Holder is not, for United States federal income
tax purposes, a controlled foreign corporation related, directly or
indirectly, to us through stock ownership, (iii) such Holder is not a bank
receiving interest described in Section 881(c)(3)(A) of the Code, and (iv)
the certification requirements under Section 871(h) or Section 881(c) of
the Code and Treasury Regulations thereunder (summarized below) are met;
and
(b) a United States Alien Holder of a Note will not be subject to United
States federal income tax on gain recognized on the sale, exchange,
redemption, retirement or other disposition of such Note, unless (i) such
Holder is a non-resident alien individual who is present in the United
States for 183 days or more in the taxable year of disposition, and certain
conditions are met or (ii) such gain is effectively connected with the
conduct by such Holder of a trade or business in the United States.
Sections 871(h) and 881(c) of the Code and United States Treasury
Regulations thereunder require that, in order to obtain the exemption from
withholding tax described in paragraph (a) above, either (A) the beneficial
owner of a Note must certify, under penalties of perjury, to us or our paying
agent, as the case may be, that such owner is a United States Alien Holder and
must provide such owner's name and address, or (B) a securities clearing
organization, bank or other financial institution that holds customers'
securities in the ordinary course of its trade or business (a "Financial
Institution") and holds the Note on behalf of the beneficial owner thereof must
certify, under penalties of perjury, to us or our paying agent, as the case may
be, that such certificate has been received from the beneficial owner by it or
by a Financial Institution between it and the beneficial owner and must furnish
the payor with a copy thereof. A certificate described in this paragraph is
effective only with respect to payments of interest made to the certifying
United States Alien Holder after issuance of the certificate in the calendar
year of its issuance and the two immediately succeeding calendar years. Under
temporary United States Treasury Regulations, the foregoing certification may
be provided by the beneficial owner of a Note on Internal Revenue Service Form
W-8.
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On October 14, 1997, the Internal Revenue Service published in the Federal
Register final regulations (the "1997 Final Regulations"), which affect the
United States taxation of United States Alien Holders. The 1997 Final
Regulations are currently expected to be effective for payments after December
31, 2000, regardless of the issue date of the instrument with respect to which
such payments are made, subject to certain transition rules. The discussion
under this heading and under "Backup Withholding and Information Reporting,"
below, is not intended to be a complete discussion of the provisions of the
1997 Final Regulations, and Holders are urged to consult their tax advisors
concerning the tax consequences of their acquiring, holding and disposing of
the Notes in light of the 1997 Final Regulations.
The 1997 Final Regulations provide documentation procedures designed to
simplify compliance by withholding agents. The 1997 Final Regulations generally
do not affect the documentation rules described above, but add other
certification options. Under one such option, a withholding agent will be
allowed to rely on an intermediary withholding certificate furnished by a
"qualified intermediary" (as defined below) on behalf of one or more beneficial
owners (or other intermediaries) without having to obtain the beneficial owner
certificate described above. "Qualified intermediaries" include: (i) foreign
financial institutions or foreign clearing organizations (other than a United
States branch or United States office of such institution or organization) or
(ii) foreign branches or offices of United States financial institutions or
foreign branches or offices of United States clearing organizations, which, as
to both (i) and (ii), have entered into withholding agreements with the
Internal Revenue Service. In addition to certain other requirements, qualified
intermediaries must obtain withholding certificates, such as revised Internal
Revenue Service Form W-8 (see below), from each beneficial owner. Under another
option, an authorized foreign agent of a United States withholding agent will
be permitted to act on behalf of the United States withholding agent, provided
certain conditions are met.
For purposes of the certification requirements, the 1997 Final Regulations
generally treat, as the beneficial owners of payments on a debt instrument,
those persons that, under United States tax principles, are the taxpayers with
respect to such payments, rather than persons such as nominees or agents
legally entitled to such payments. In the case of payments to an entity
classified as a foreign partnership under United States tax principles, the
partners, rather than the partnership, generally will be required to provide
the required certifications to qualify for the withholding exemption described
above. A payment to a United States partnership, however, is treated for these
purposes as payment to a United States payee, even if the partnership has one
or more foreign partners. The 1997 Final Regulations provide certain
presumptions with respect to withholding for holders of debt instruments not
furnishing the required certifications to qualify for the withholding exemption
described above. In addition, the 1997 Final Regulations will replace a number
of current tax certification forms (including Internal Revenue Service Form W-8
and Internal Revenue Service Form 4224, discussed below) with a new Internal
Revenue Service Form W-8 series of tax certification forms (which, in certain
circumstances, requires information in addition to that previously required).
These new forms are currently available and may be used in lieu of the current
Internal Revenue Service Forms W-8 and 4224. Under the 1997 Final Regulations,
this Form W-8 will remain valid until the last day of the third calendar year
following the year in which the certificate is signed.
If a United States Alien Holder of a Note is engaged in a trade or business
in the United States, and if interest on the Note, or gain recognized on the
sale, exchange, redemption, retirement or other disposition of the Note, is
effectively connected with the conduct of such trade or business, the United
States Alien Holder, although exempt from withholding of United States income
tax, will generally be subject to regular United States income tax on such
interest or gain in the same manner as if it were a United States Holder. In
lieu of the certificate described above, such a Holder must provide to the
withholding agent a properly executed Internal Revenue Service Form 4224 or W-
8ECI (or successor form) in order to claim an exemption from withholding. In
addition, if such United States Alien Holder is a foreign corporation, it may
be subject to a branch profits tax equal to 30% (or such lower rate provided by
an applicable treaty) of its effectively connected earnings and profits for the
taxable year, subject to certain adjustments.
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Backup Withholding and Information Reporting
Information reporting to the Internal Revenue Service generally will be
required with respect to payments of principal or interest on the Notes and to
proceeds of the sale of the Notes that, in each case, are paid by a United
States payor or intermediary to United States Holders other than corporations
and other exempt recipients. A 31% "backup" withholding tax will apply to those
payments if such United States Holder fails to provide certain identifying
information (such as such Holder's taxpayer identification number) to such
payor or intermediary or such Holder is notified by the Internal Revenue
Service that it has failed to report all interest and dividends required to be
shown on its United States federal income tax returns. United States Alien
Holders may be required to comply with applicable certification procedures to
establish that they are not United States Holders in order to avoid the
application of such information reporting requirements and backup withholding.
Backup withholding tax is not an additional tax and generally may be credited
against a Holder's United States federal income tax liability provided that
such Holder provides the necessary information to the Internal Revenue Service.
PLAN OF DISTRIBUTION
This prospectus, as it may be amended or supplemented from time to time, may
be used by a broker-dealer (a "Participating Broker-Dealer") in connection with
the resale of the New Notes received in exchange for the Old Notes where such
Old Notes were acquired for its own account as a result of market-making
activities or other trading activities. Each such Participating Broker-Dealer
that participates in the exchange offer that receives the New Notes for its own
account pursuant to the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Notes. We have agreed that
for a period of 180 days after the date when the registration statement becomes
effective, we will use our best efforts to make this prospectus, as amended or
supplemented, available to any Participating Broker-Dealer for use in
connection with any such resale.
We will not receive any proceeds from any sale of New Notes by Participating
Broker-Dealers. New Notes received by Participating Broker-Dealers for their
own account pursuant to the exchange offer may be sold from time to time in one
or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options of the New Notes or a combination
of such methods of resale, at market prices prevailing at the time of resale,
at prices related to such prevailing market prices or negotiated prices. Any
such resale may be made directly to purchasers or to or through brokers or
dealers who may receive compensation in the form of commissions or concessions
from any Participating Broker-Dealer and/or the purchases of any such New
Notes. Any Participating Broker-Dealer that resells New Notes that were
received by it for its own account pursuant to the exchange offer and any
broker or dealer that participates in a distribution of such New Notes may be
deemed to be an "underwriter" within the meaning or the Securities Act of 1933
and any profit on any such resale of New Notes and any commissions or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act of 1933. The letter of transmittal states
that by acknowledging that it will deliver and by delivering a prospectus, a
Participating Broker-Dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act of 1933.
For a period of 180 days after the expiration date of the exchange offer, we
will promptly send additional copies of this prospectus and any amendment or
supplement to this prospectus to any Participating Broker-Dealer that requests
such documents in the letter of transmittal.
This prospectus has been prepared for use in connection with the exchange
offer and may be used by the initial purchasers in connection with the offers
and sales related to market-making transactions in the New Notes. The initial
purchasers may act as principals or agents in such transactions. Such sales
will be made at prices related to prevailing market prices at the time of sale.
We will not receive any of the proceeds of such sales. The initial purchasers
have no obligation to make a market in the New Notes and may discontinue their
market-making activities at any time without notice, at their sole discretion.
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INCORPORATION OF INFORMATION BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file with
the SEC. This permits us to disclose important information to you by
referencing these filed documents. Any information referenced this way is
considered part of this prospectus, and any information filed with the SEC
subsequent to this prospectus will automatically update and, where applicable,
supersede any information previously incorporated by reference and listed
below. We incorporate by reference the following documents that have been filed
with the SEC:
. Annual Report on Form 10-K for the year ended December 31, 1998;
. Quarterly Reports on Form 10-Q for the quarter ended March 31, 1999;
. Proxy statement for the 1998 Annual Shareholders' Meeting, filed on March
24, 1999; and
. Current reports on Form 8-K filed on April 7, 1998 and November 24, 1998.
This prospectus incorporates documents by reference which are not part of or
delivered with this document. These documents (not including exhibits to such
documents, unless such exhibits are specifically incorporated by reference in
such documents) are available without charge upon written or oral request
directed to: David M. Sherbin, Esq., Associate General Counsel and Secretary,
Federal-Mogul Corporation, 26555 Northwestern Highway, Southfield, Michigan
48034 (telephone: (248) 354-7700).
LEGAL MATTERS
The validity of securities being offered hereby will be passed upon for us
by David M. Sherbin, Esq., Associate General Counsel and Secretary of Federal-
Mogul. Mr. Sherbin owns and holds options to purchase approximately 3,200
shares of our common stock.
EXPERTS
The consolidated financial statements and schedule of Federal-Mogul for each
of the three years in the period ended December 31, 1998 and the consolidated
financial statements of Federal-Mogul Ignition Company and Federal-Mogul
Products, Inc. and the financial statements of Federal-Mogul Aviation, Inc.,
all of which are incorporated by reference in this document from Federal-
Mogul's Form 10-K for 1998, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their reports and incorporated in this document by
reference. The consolidated financial statements and schedule audited by Ernst
&Young LLP are incorporated in this document by reference in reliance on such
reports given upon the authority of the firm as experts in accounting and
auditing.
The consolidated financial statements of T&N for the three years in the
period ended December 31, 1997 incorporated by reference in this document have
been audited by KPMG Audit Plc, independent auditors, as set forth in their
reports and incorporated in this document by reference. The consolidated
financial statements audited by KPMG Audit Plc are incorporated in this
document by reference in reliance on their report given on their authority as
experts in accounting and auditing.
The financial statements of Fel-Pro as of December 28, 1997 and December 29,
1996 for the three years in the period ended December 28, 1997 incorporated by
reference in this document have been audited by Ernst & Young LLP, independent
auditors, as set forth in their reports and incorporated by reference in this
document. The financial statements audited by Ernst & Young LLP are
incorporated in this document by reference in reliance on such report given
upon the authority of the firm as experts in accounting and auditing.
The financial statements of the automotive divisions of Cooper Industries,
Inc. for the combined financial position as of December 31, 1996 and 1997 and
combined results of operations and cash flows for each of the three years in
the period ended December 31, 1997 incorporated by reference in this document
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their reports and incorporated by reference in this document. The financial
statements audited by Ernst & Young LLP are incorporated in this document by
reference in reliance on such report given upon the authority of the firm as
experts in accounting and auditing.
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PROSPECTUS
----------------
Offer To Exchange 7 3/8% Notes due 2006
For Any and All Outstanding 7 3/8% Notes due 2006
and 7 1/2% Notes due 2009
For Any and All Outstanding 7 1/2% Notes due 2009
Dated , 1999
No dealer, salesperson or other person has been authorized to give any
information or to make any representations other than those contained or
incorporated by reference in this prospectus in connection with the offer
contained in the prospectus and, if given or made, the information or
representations must not be relied upon. This prospectus is not an offer to
sell, nor do they seek an offer to buy, these securities in any jurisdiction in
which the offer or sale is not permitted.
Until , 1999, all dealers that effect transactions in these securities,
whether or not participating in this exchange offer, may be required to deliver
a prospectus.
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Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers of Federal-Mogul
Sections 561 through 571 of the Michigan Business Corporation Act (the
"Act"), and Article XI of Federal-Mogul's bylaws relate to the indemnification
of Federal-Mogul's directors and officers, among others, in a variety of
circumstances against liabilities arising in connection with the performance of
their duties.
The Act permits indemnification of directors and officers acting in good
faith and in a manner they reasonably believe to be in or not opposed to the
best interests of Federal-Mogul or its shareholders (and, regarding a criminal
proceeding, if they have no reasonable cause to believe their conduct to be
unlawful) against (i) expenses (including attorney's fees), judgments,
penalties, fines and amounts paid in settlement actually and reasonably
incurred in connection with any threatened, pending, or completed action, suit,
or proceeding (other than an action by or in the right of Federal-Mogul)
arising by reason of the fact that such person is or was a director or officer
of Federal-Mogul (or with some other entity at Federal-Mogul's request) and
(ii) expenses (including attorneys' fees) and amounts paid in settlement
actually and reasonably incurred in connection with a threatened, pending or
completed action or suit by or in the right of Federal-Mogul, unless the
director or officer is found liable to Federal-Mogul and an appropriate court
does not determine that he or she is nevertheless fairly and reasonably
entitled to indemnification.
The Act requires indemnification for expenses to the extent that a director
or officer is successful on the merits in defending against any such action,
suit or proceeding, and otherwise requires in general that the indemnification
provided for in (i) and (ii) above be made only on a determination by (a)
majority vote of a quorum of the board of directors who were not parties or
threatened to be made parties to the action, suit or proceeding, (b) if a
quorum cannot be obtained, by a majority vote of a committee duly designated by
the board and consisting only of two or more directors not at the time parties
or threatened to be made parties to the action, suit or proceeding, (c) by
independent legal counsel, (d) by all independent directors who are not parties
or threatened to be made parties to the action, suit or proceeding, or (e) by
the shareholders (but shares held by directors or officers who are parties or
are threatened to be made parties may not be voted). In some specific
circumstances, the Act further permits advances to cover such expenses before a
final determination that indemnification is permissible, upon receipt of a
written affirmation by the director or officer of their good-faith belief that
they have met the applicable standard of conduct set forth in Sections 561 and
562 of the Act, receipt of a written undertaking by or on behalf of the
director or officer to repay such amounts unless it shall ultimately be
determined that they are entitled to indemnification and a determination that
the facts then known to those making the advance would not preclude
indemnification.
Indemnification under the Act is not exclusive of other rights to
indemnification to which a person may be entitled under Federal-Mogul's
Articles of Incorporation, bylaws, or a contractual agreement. The Act permits
Federal-Mogul to purchase insurance on behalf of its directors and officers
against liabilities arising out of their positions with Federal-Mogul whether
or not such liabilities would be within the foregoing indemnification
provisions.
Bylaws
Under Federal-Mogul's bylaws, Federal-Mogul is required to indemnify any
person who was or is a party or is threatened to be made a party to or called
as a witness in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (whether
formal or informal) and any appeal thereof (other than an action by or in the
right of Federal-Mogul, a "derivative action") by reason of the fact that such
person is, was or agreed to become a director or officer of Federal-Mogul,
against expenses (including attorneys' fees), judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person was successful
in
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defending such action, suit or proceeding, or otherwise if such person acted in
good faith and in a manner the person reasonably believed to be in or not
opposed to the best interests of Federal-Mogul or its shareholders, and,
regarding any criminal action or proceeding, if the person had no reasonable
cause to believe his or her conduct was unlawful. A similar standard of care is
applicable in the case of derivative actions, except the indemnification
extends only to expenses (including actual and reasonable attorneys' fees) and
amounts paid in settlement incurred by the person in connection with such
action and, where the person is found to be liable to Federal-Mogul, only if
and to the extent that the court in which such action was brought determines
that such person is fairly and reasonably entitled to such indemnification for
the expenses which the court considers proper.
Federal-Mogul's bylaws provide that Federal-Mogul shall pay for the expenses
incurred by an indemnified director or officer in defending the proceedings
specified above, in advance of their final disposition, provided that if
required by the Act, the person furnishes Federal-Mogul with an undertaking to
reimburse Federal-Mogul if it is ultimately determined that such person is not
entitled to indemnification. Federal-Mogul shall provide indemnification to any
person who is or was serving at the request of Federal-Mogul as a director,
officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, or other enterprise, whether for profit or
not, to the same degree as the foregoing indemnification of directors and
officers. In addition, Federal-Mogul may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of
Federal-Mogul (or is serving or was serving at the request of Federal-Mogul in
a position and at an entity listed in the preceding sentence) against any
liability asserted against and incurred by such person in such capacity, or
arising out of the person's status as such whether or not Federal-Mogul would
have the power to indemnify the person against such liability under the
provisions of Federal-Mogul's bylaws.
Indemnification of Directors and Officers of the Guarantors
Federal-Mogul's bylaw provisions described above provide for indemnification
for persons serving at the request of Federal-Mogul as director or officer of,
or in other specified capacities in respect of, Guarantors. In addition, the
following indemnification provisions are applicable.
Michigan
Federal-Mogul World Wide, Inc. and Federal-Mogul Global Properties, Inc. are
organized under the laws of the State of Michigan. The indemnification
provisions of the Michigan Business Corporation Act described in
"Indemnification of Directors and Officers of Federal-Mogul" above also relate
to the directors and officers of Federal-Mogul World Wide, Inc. and Federal-
Mogul Global Properties, Inc.
Delaware
Federal-Mogul Dutch Holdings, Inc., Federal-Mogul Global Inc., Federal-Mogul
U.K. Holdings Inc., Carter Automotive Company, Federal-Mogul Ignition Company,
Federal-Mogul Aviation, Inc. and Felt Products Mfg. Co. are organized under the
laws of the State of Delaware. Section 145 of Title 8 of the Delaware Code
gives a corporation power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, regarding any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
same Section also gives a corporation power to indemnify any person who was or
is a party
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or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnify for such expenses which the Court
of Chancery or such other Court shall deem proper. Also the Section states
that, to the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense or any
such action, suit or proceeding, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith. Article Tenth
of Fel-Pro Management Co.'s certificate of incorporation provides for the same
indemnification as described above.
Under Section 1 of Article IX of Felt Products Mfg. Co.'s bylaws, Felt
Products Mfg. Co. is required to the full extent permitted by Section 145 of
the Delaware General Corporation Law, as amended at various times, to indemnify
all officers and directors of the corporation. The indemnification authorized
by the bylaws will not be found exclusive of any other rights to which those
seeking indemnification may be entitled under or through any agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in the
official capacity of those seeking indemnification and as to action in another
capacity while holding such office, and will continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs,
executors and administrators of such persons.
Nevada
Federal Mogul Venture Corporation is organized under the laws of the State
of Nevada. Pursuant to the Nevada General Corporation Laws a director or
officer of Federal Mogul Venture Corporation shall not be personally liable to
Federal Mogul Venture Corporation or its stock holders for damages for any
breach of fiduciary duty as a director or officer, except for liability for (i)
acts or omissions which involve intentional misconduct, fraud or a knowing
violation of law, or (ii) the payment of distributions in violation of Nevada
Revised Statutes 78.300. In addition and under specific circumstances, Nevada
Revised Statutes 78.751 and Federal Mogul Venture Corporation's bylaws, provide
for the indemnification of Federal Mogul Venture Corporation's officers,
directors, employees, and agents against liabilities which they may incur in
such capacities.
In addition, under Article XI of Federal Mogul Venture Corporation's bylaws,
Federal Mogul Venture Corporation is required to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (whether formal or informal) and any appeal thereof (other
than an action by or in the right of Federal Mogul Venture Corporation, a
"derivative action") by reason of the fact that such person is or was a
director or officer of Federal Mogul Venture Corporation, against expenses
(including attorneys' fees), judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person was successful in defending such
action, suit or proceeding, or otherwise if such person acted in good faith and
in a manner the person reasonably believed to be in or not opposed to the best
interests of Federal Mogul Venture Corporation or its shareholders, and,
regarding any criminal action or proceeding, if the person had no reasonable
cause to believe his or her conduct was unlawful. A similar standard of care is
applicable in the case of derivative actions, except the indemnification
extends only to expenses (including actual and reasonable attorneys' fees) and
amounts paid in
II-3
<PAGE>
settlement incurred by the person in connection with such action and, where the
person is found to be liable to Federal Mogul Venture Corporation, only if and
to the extent that the court in which such action was brought determines that
such person is fairly and reasonably entitled to such indemnification for the
expenses which the court considers proper. Federal Mogul Venture Corporation's
bylaws provide that Federal Mogul Venture corporation shall pay for the
expenses incurred by an indemnified director or officer in defending the
proceedings specified above, in advance of their final disposition, provided
that the person furnishes Federal Mogul Venture Corporation with an undertaking
to reimburse Federal Mogul Venture Corporation if it is ultimately determined
that such person is not entitled to indemnification. Federal Mogul Venture
Corporation shall provide indemnification to any person who is or was serving
at the request of Federal Mogul Venture Corporation as a director, officer,
partner, trustee, employee or agent of another corporation, partnership, joint
venture, trust, or other enterprise, whether for profit or not, to the same
degree as the foregoing indemnification of directors and officers. In addition,
Federal Mogul Venture Corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of Federal
Mogul Venture Corporation (or is serving or was serving at the request of
Federal Mogul Venture Corporation in a position and at an entity listed in the
preceding sentence) against any liability asserted against and incurred by such
person in such capacity, or arising out of the person's status as such whether
or not Federal Mogul Venture Corporation would have the power to indemnify the
person against such liability under the provisions of Federal Mogul Venture
Corporation's bylaws or the laws of the State of Nevada.
Missouri
Federal Mogul Products, Inc. is organized under the laws of the State of
Missouri. Sections 351.355(1) and (2) of The General and Business Corporation
Law of the State of Missouri provide that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful, except
that, in the case of an action or suit by or in the right of the corporation,
the corporation may not indemnify such persons against judgments and fines and
no person shall be indemnified as to any claim, issue or matter as to which
such person shall have been adjudged to be liable for negligence or misconduct
in the performance of his duty to the corporation, unless and only to the
extent that the court in which the action or suit was brought determines upon
application that such person is fairly and reasonably entitled to indemnity for
proper expenses. Section 351.355(3) provides that, to the extent that a
director, officer, employee or agent of the corporation has been successful in
the defense of any such action, suit or proceeding or any claim, issue or
matter therein, he shall be indemnified against expenses, including attorney's
fees, actually and reasonably incurred in connection with such action, suit or
proceeding. Sections 351.355(7) provides that a corporation may provide
additional indemnification to any person indemnifiable under subsection (1) or
(2), provided such additional indemnification is authorized by the
corporation's articles of incorporation or an amendment thereto or by a
shareholder-approved bylaw or agreement, and provided further that no person
shall thereby be indemnified against conduct which was finally adjudged to have
been knowingly fraudulent, deliberately dishonest or willful misconduct or
which involve an accounting for profits pursuant to Section 16(b) of the
Securities Exchange Act of 1934. The Articles of Incorporation permits the
registrant to enter into agreements with its directors, officers, employees and
agents providing such indemnification as deemed appropriate, up to the maximum
extent permitted by law.
United Kingdom
F-M UK Holding Limited is organized under the laws of the United Kingdom.
Article 37 of the Articles of Association of F-M UK Holding Limited provides
that, subject to the provisions of the Companies Act 1985,
II-4
<PAGE>
every director, officer or auditor of the company or person acting as an
alternate director shall be entitled to be indemnified out of the assets of the
company against all costs, charges, expenses, losses or liabilities which he
may sustain or incur in or about the execution of his duties to the company or
otherwise in relation thereto.
Section 310 of the Companies Act 1985 (as amended by Section 137 of the
Companies Act 1989) provides:
"(1) This section applies to any provision, whether contained in a
company's articles or in any contract with the company or otherwise, for
exempting any officer of the company or any person (whether an officer or
not) employed by the Company as auditor from, or indemnifying him against,
any liability which by virtue of any rule of law would otherwise attach to
him in respect of any negligence, default, breach of duty or breach of
trust of which he may be guilty in relation to the Company.
(2) Except as provided by the following subsection, any such provision
is void.
(3) This section does not prevent a company
(a) from purchasing and maintaining for any such officer or auditor
insurance against any such liability; or
(b) from indemnifying any such officer or auditor against any
liability incurred by him (i) in defending any proceedings (whether
civil or criminal) in which judgment is given in his favor or he is
acquitted, or (ii) in connection with any application under section
133(3) or (4) (acquisition of shares by innocent nominee) or section
727 (general power to grant relief in case of honest and reasonable
conduct), in which relief is granted to him by the court."
Selection 727 of the Companies Act 1985 further provides:
"(1) If in any proceedings for negligence, default, breach of duty or
breach of trust against an officer of a company or a person employed by a
company as auditor (whether he is or is not an officer of the company) it
appears to the court hearing the case that that officer or person is or may
be liable in respect of the negligence, default, breach of duty or breach
of trust, but that he has acted honestly and reasonably, and that having
regard to all the circumstances of the case (including those connected with
his appointment) he ought fairly to be excused for the negligence, default,
breach of duty or breach of trust, that court may relieve him, either
wholly or partly, from his liability on such terms as it thinks fit.
(2) If any such officer or person as above-mentioned has reason to
apprehend that any claim will or might be made against him in respect of
any negligence, default, breach of duty or breach of trust, he may apply to
the court for relief, and the court on the application has the same power
to relieve him under this section as it would have had if it had been a
court before which proceedings against that person for negligence, default,
breach of duty or breach of trust had been brought.
(3) Where a case to which subsection (1) applies is being tried by a
judge with a jury, the judge, after hearing the evidence, may, if he is
satisfied that the defendant or defender ought in pursuant of that
subsection to be relieved either in whole or in part from the liability
sought to be enforced against him, withdraw the case in whole or in part
from the jury and forthwith direct judgment to be entered for the defendant
or defender on such terms as to costs or otherwise as the judge may think
proper."
II-5
<PAGE>
Item 21. Exhibits and Financial Statement Schedules.
<TABLE>
<CAPTION>
Exhibit
No. Exhibit Description
------- -------------------
<S> <C>
2.1 Recommended Cash Offer for T&N plc, dated as of November 13, 1997.
(Incorporated by reference to Exhibit 2.1 to Federal-Mogul's Annual Report
on Form 10-K for the year ended December 31, 1997 (the "1997 10-K".)
2.2 Equity Purchase Agreement between the Company and The Sellers with respect
to the acquisition of Fel-Pro Incorporated, dated as of January 9, 1998.
(Incorporated by reference to Exhibit 2.2 to the 1997 10-K.)
2.3 Purchase and Sale Agreement between Cooper Industries, Inc. and Federal-
Mogul Corporation, dated August 17, 1998. (Incorporated by reference to
Exhibit 2.1 to Federal-Mogul's Current Report on Form 8-K filed October
26, 1998.)
3.1 Federal-Mogul's Second Restated Articles of Incorporation, as amended.
(Incorporated by reference to Exhibit 3.1 to Federal-Mogul's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1999.)
3.2 Federal-Mogul's Bylaws, as amended (Incorporated by reference to Exhibit
3.2 to Federal-Mogul's Form 10-K for the year ended December 31, 1998 (the
"1998 10-K").)
*3.3 Federal-Mogul Dutch Holdings Inc.'s Certificate of Incorporation, as
amended.
*3.4 Federal-Mogul Dutch Holdings Inc.'s Bylaws.
*3.5 Federal-Mogul Global Inc.'s Articles of Incorporation.
*3.6 Federal-Mogul Global Inc.'s Bylaws.
*3.7 Federal-Mogul U.K. Holdings Inc.'s Certificate of Incorporation, as
amended.
*3.8 Federal-Mogul U.K. Holdings Inc.'s Bylaws.
*3.9 Carter Automotive Company, Inc.'s Certificate of Incorporation.
*3.10 Carter Automotive Company, Inc.'s Bylaws.
*3.11 Federal-Mogul Venture Corporation's Articles of Incorporation, as amended.
*3.12 Federal-Mogul Venture Corporation's Bylaws.
*3.13 Federal-Mogul World Wide, Inc.'s Articles of Incorporation.
*3.14 Federal-Mogul World Wide, Inc.'s Bylaws.
*3.15 Federal-Mogul Global Properties, Inc.'s Articles of Incorporation.
*3.16 Federal-Mogul Global Properties, Inc.'s Bylaws.
*3.17 Felt Products Mfg. Co.'s Restated Certificate of Incorporation, as
amended.
*3.18 Felt Products Mfg. Co.'s Bylaws.
**3.19 F-M UK Holding Limited's Memorandum of Association.
**3.20 Federal-Mogul Ignition Company's Certificate of Incorporation.
**3.21 Federal-Mogul Ignition Company's Bylaws.
**3.22 Federal-Mogul Products, Inc.'s Articles of Incorporation.
**3.23 Federal-Mogul Products, Inc.'s Bylaws.
**3.24 Federal-Mogul Aviation, Inc.'s Articles of Incorporation.
**3.25 Federal-Mogul Aviation, Inc.'s Bylaws.
4.1 Rights Agreement dated as of February 24, 1999 between Federal-Mogul and
The Bank of New York, as Rights Agent. (Incorporated by reference to
Exhibit 4 to Federal-Mogul's Current Report on Form 8-K filed February 25,
1999.)
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Exhibit Description
------- -------------------
<S> <C>
4.2 Purchase Agreement for 10,000,000 Trust Convertible Preferred Securities
of Federal-Mogul Financing Trust, dated as of November 24, 1997.
(Incorporated by reference to Exhibit 4.6 to the 1997 10-K.)
4.3 Registration Rights Agreement, dated as of December 1, 1997, by and among
Federal-Mogul, Federal-Mogul Financing Trust and Morgan Stanley & Co. Inc.
as Initial Purchaser. (Incorporated by reference to Exhibit 4.7 to the
1997 10-K.)
4.4 Indenture between Federal-Mogul and The Bank of New York, dated as of
December 1, 1997, with respect to the Subordinated Debentures.
(Incorporated by reference to Exhibit 4.8 to the 1997 10-K.)
4.5 First Supplemental Indenture between Federal-Mogul and The Bank of New
York, dated as of December 1, 1997, with respect to the Subordinated
Debentures. (Incorporated by reference to Exhibit 4.9 to the 1997 10-K.)
4.6 Indenture among Federal-Mogul Corporation and The Bank of New York dated
as of January 20, 1999. (Incorporated by reference to Exhibit 4.8 to the
1998 10-K).
4.7 Registration Agreement, dated as of January 9, 1998, by and among Federal-
Mogul and the Investors identified on Schedule 1 thereto relating to the
Series E Mandatory Exchangeable Preferred Stock. (Incorporated by
reference to Exhibit 4.10 to the 1997 10-K.)
**4.8 Registration Rights Agreement, dated as of January 20, 1999, by and among
Federal-Mogul and the Initial Purchasers named therein.
4.9 Form of New Note (contained in Exhibit 4.6).
4.10 Form of Guarantee (contained in Exhibit 4.6).
**5 Opinion of David M. Sherbin, Esq.
10.1 Federal-Mogul's 1984 Stock Option Plan, as last amended. (Incorporated by
reference to Exhibit 10.2 to Federal-Mogul's Annual report or Form 10-K
for the year ended December 31, 994 (the "1994 10-K").)
10.2 Federal-Mogul Corporation 1989 Performance Incentive Stock Plan, as
amended. (Incorporated by reference to Exhibit 10.14 to the 1994 10-K.)
10.3 Federal-Mogul Corporation 1997 Amended and Restated Long-Term Incentive
Plan, as adopted by the Shareholders of Federal-Mogul on May 20, 1998.
(Incorporated by reference to Federal-Mogul's 1998 Definitive Proxy
Statement on Form 14A.)
10.4 Federal-Mogul's 1977 Supplemental Compensation Plan, as amended and
restated. (Incorporated by reference to Exhibit 10.27 to Federal-Mogul's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1994.)
10.5 Form of Executive Severance Agreement between Federal-Mogul and certain
executive officers. (Incorporated by reference to Exhibit 10.5 to Federal-
Mogul's Annual Report on Form 10-K for the year ended December 31, 1996
(the "1996 10-K").)
10.6 Amended and Restated Deferred Compensation Plan for Corporate Directors.
(Incorporated by reference to Exhibit 10.7 to Federal-Mogul's Annual
Report on Form 10-K for the year ended December 31, 1990 (the "1990 10-
K").)
10.7 Supplemental Executive Retirement Plan, as amended. (Incorporated by
reference to Exhibit 10.10 to Federal-Mogul's Annual Report for the year
ended December 31, 1992 (the "1992 10-K").)
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Exhibit Description
------- -------------------
<S> <C>
10.8 Description of Umbrella Excess Liability Insurance for the Senior
Management Team. (Incorporated by reference to Exhibit 10.11 to the 1990
10-K.)
10.9 Federal-Mogul Corporation Executive Loan Program. (Incorporated by
reference to Exhibit 10.26 to Federal-Mogul's Quarterly Report on Form 10-
Q for the quarter ended March 31, 1994.)
10.10 Federal-Mogul Corporation Non-Employee Director Stock Plan. (Incorporated
by reference to Exhibit 4 to Federal-Mogul's Registration Statement on
Form S-8 (Registration No. 33-54301).)
10.11 Amended and Restated Declaration of Trust of Federal-Mogul Financing
Trust, dated as of December 1, 1997. (Incorporated by reference to Exhibit
10.34 to the 1997 10-K.)
10.12 Common Securities Guarantee Agreement, dated as of December 1, 1997, among
Federal-Mogul and Federal-Mogul Financing Trust. (Incorporated by
reference to Exhibit 10.35 to the 1997 10-K.)
10.13 Third Amended and Restated Credit Agreement, dated as of February 24,
1999, in the amount of $1,750,000,000 among Federal-Mogul, The Foreign
Subsidiary Borrowers, the Lenders and The Chase Manhattan Bank.
(Incorporated by reference to Exhibit 10.13 to the 1998 10-K.)
10.14 Receivables Sale and Contribution Agreement, dated as of November 20,
1998, among Federal-Mogul, Carter Automotive Company, Inc., Federal-Mogul
Canada Limited and Federal-Mogul Funding Corporation. (Incorporated by
reference to Exhibit 10.14 to the 1998 10-K.)
10.15 Receivable Interest Purchase Agreement, dated as of November 20, 1998,
among Federal-Mogul, Federal-Mogul Funding Corporation, Falcon Asset
Securitization Corporation and The First National Bank of Chicago.
(Incorporated by reference to Exhibit 10.15 to the 1998 10-K.)
11 Computation of Per Share Earnings. (Incorporated by reference to the 1998
10-K.)
**12.1 Computation of Ratio of Earnings to Fixed Charges.
**12.2 Computation of Ratio of Earnings to Combined Fixed Charges and Preferred
Stock Dividends.
21 Subsidiaries of the Registrant. (Incorporated by reference to Exhibit 21
to the 1998 10-K).
**23.1 Consent of Ernst & Young LLP.
**23.2 Consent of KPMG Audit Plc.
**23.3 Consent of David M. Sherbin, Esq. (included in his opinion filed as
Exhibit 5).
**24.1 Power of Attorney for Federal-Mogul.
**24.2 Powers of Attorney of Guarantors.
**25 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Trustee under the
Indentures.
**99.1 Form of Letter of Transmittal.
**99.2 Form of Notice of Guaranteed Delivery.
**99.3 Form of Exchange Agreement.
</TABLE>
- --------
*Previously filed as an exhibit to Registration Statement Number 333-56725.
**Filed herewith.
II-8
<PAGE>
Item 22. Undertakings.
(a) The undersigned registrant hereby undertakes:
A. that, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be found to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be found to be the
initial bona fide offering thereof.
B. insofar as the indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that, in the opinion of the
Securities and exchange Commission, such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. If a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
C. 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 in accordance with the rules and regulations prescribed by
the Commission under Section 305(b)(2) of such Act.
D. to respond to requests for information that is incorporated by
reference into the prospectus pursuant to Item 4, 10(b), 11 or 13 of this
form, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of the registration statement through the date of responding
to the request.
E. to supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in the registration statement when
it became effective.
II-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
auhorized, in the City of Southfield, State of Michigan, on the 24th day of
June, 1999.
Federal-Mogul Corporation
/s/ David M. Sherbin
By:__________________________________
David M. Sherbin
Associate General Counsel and
Secretary
FEDERAL-MOGUL CORPORATION
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on the 23rd day of June, 1999
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Richard A. Snell Chairman of the Board, Chief Executive
___________________________________________ Officer and Director (Principal Executive
Richard A. Snell Officer)
/s/ Thomas W. Ryan Executive Vice President and Chief
___________________________________________ Financial Officer (Principal Financial
Thomas W. Ryan Officer)
/s/ Kenneth P. Slaby Vice President and Controller (Principal
___________________________________________ Accounting Officer)
Kenneth P. Slaby
/s/ John J. Fannon Director
___________________________________________
John J. Fannon
/s/ Roderick M. Hills Director
___________________________________________
Roderick M. Hills
/s/ Paul Scott Lewis Director
___________________________________________
Paul Scott Lewis
/s/ Antonio Madero Director
___________________________________________
Antonio Madero
/s/ Robert S. Miller, Jr. Director
___________________________________________
Robert S. Miller, Jr.
/s/ John C. Pope Director
___________________________________________
John C. Pope
/s/ Sir Geoffrey Whalen Director
___________________________________________
Sir Geoffrey Whalen C.B.E.
</TABLE>
II-10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Southfield, State of Michigan, on June 24, 1999.
Federal-Mogul Global Inc.
/s/ Alan C. Johnson
By:__________________________________
Name: Alan C. Johnson
Title: President and Chief
Executive Officer
FEDERAL-MOGUL GLOBAL INC.
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 23rd day of June, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Alan C. Johnson Chief Executive Officer (Principal
___________________________________________ Executive Officer)
Alan C. Johnson
/s/ Thomas W. Ryan Chief Financial Officer (Principal
___________________________________________ Financial Officer)
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller (Principal Accounting Officer)
___________________________________________
Kenneth P. Slaby
/s/ Alan C. Johnson Director
___________________________________________
Alan C. Johnson
/s/ Thomas W. Ryan Director
___________________________________________
</TABLE> Thomas W. Ryan
II-11
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Southfield, State of Michigan, on June 24, 1999.
Federal-Mogul U.K. Holdings Inc.
/s/ Alan C. Johnson
By: _________________________________
Name: Alan C. Johnson
Title: President and Chief
Executive Officer
FEDERAL-MOGUL U.K. HOLDINGS INC.
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 23rd day of June, 1999
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Alan C. Johnson Chief Executive Officer (Principal
___________________________________________ Executive Officer)
Alan C. Johnson
/s/ Thomas W. Ryan Chief Financial Officer (Principal
___________________________________________ Financial Officer)
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller (Principal Accounting Officer)
___________________________________________
Kenneth P. Slaby
/s/ Alan C. Johnson Director
___________________________________________
Alan C. Johnson
/s/ Thomas W. Ryan Director
___________________________________________
Thomas W. Ryan
</TABLE>
II-12
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Southfield, State of Michigan, on June 24, 1999.
Federal-Mogul Venture Corporation
/s/ Alan C. Johnson
By: _________________________________
Name: Alan C. Johnson
Title: President and Chief
Executive Officer
FEDERAL-MOGUL VENTURE CORPORATION
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 23rd day of June, 1999
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Alan C. Johnson Chief Executive Officer (Principal
___________________________________________ Executive Officer)
Alan C. Johnson
/s/ Thomas W. Ryan Chief Financial Officer (Principal
___________________________________________ Financial Officer)
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller (Principal Accounting Officer)
___________________________________________
Kenneth P. Slaby
/s/ Timothy W. Heffron Director
___________________________________________
Timothy W. Heffron
/s/ Alan C. Johnson Director
___________________________________________
Alan C. Johnson
</TABLE>
II-13
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Southfield, State of Michigan, on June 24, 1999.
Federal-Mogul World Wide, Inc.
/s/ Alan C. Johnson
By:_________________________________
Name: Alan C. Johnson
Title: President and Chief
Executive Officer
FEDERAL-MOGUL WORLD WIDE, INC.
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 23rd of June, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Richard A. Snell Chief Executive Officer (Principal
___________________________________________ Executive Officer)
Richard A. Snell
/s/ Thomas W. Ryan Chief Financial Officer (Principal
___________________________________________ Financial Officer)
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller (Principal Accounting Officer)
___________________________________________
Kenneth P. Slaby
/s/ Alan C. Johnson Director
___________________________________________
Alan C. Johnson
/s/ Thomas W. Ryan Director
___________________________________________
</TABLE> Thomas W. Ryan
II-14
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Southfield, State of Michigan, on June 24, 1999.
Federal-Mogul Global Properties,
Inc.
/s/ Thomas W. Ryan
By: ________________________________
Name: Thomas W. Ryan
Title: Vice President and Chief
Financial Officer
FEDERAL-MOGUL GLOBAL PROPERTIES, INC.
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 23rd of June, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Gordon Ulsh President and Chief Operating Officer
___________________________________________ (Principal Executive Officer)
Gordon Ulsh
/s/ Thomas W. Ryan Chief Financial Officer (Principal
___________________________________________ Financial Officer)
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller (Principal Accounting Officer)
___________________________________________
Kenneth P. Slaby
/s/ Alan C. Johnson Director
___________________________________________
Alan C. Johnson
/s/ Gordon Ulsh Director
___________________________________________
Gordon Ulsh
/s/ David A. Bozynski Director
___________________________________________
</TABLE> David A. Bozynski
II-15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Southfield, State of Michigan, on June 24, 1999.
Felt Products Mfg. Co.
/s/ Thomas W. Ryan
By:__________________________________
Name: Thomas W. Ryan
Title: Vice President and Chief
Financial Officer
FELT PRODUCTS MFG. CO.
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 23rd of June, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Richard A. Snell Chief Executive Officer (Principal
___________________________________________ Executive Officer)
Richard A. Snell
/s/ Thomas W. Ryan Chief Financial Officer (Principal
___________________________________________ Financial Officer)
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller (Principal Accounting Officer)
___________________________________________
Kenneth P. Slaby
/s/ Thomas W. Ryan Director
___________________________________________
Thomas W. Ryan
/s/ Wilhelm A. Schmelzer Director
___________________________________________
Wilhelm A. Schmelzer
/s/ Richard A. Snell Director
___________________________________________
Richard A. Snell
</TABLE>
II-16
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Southfield, State of Michigan, on June 24, 1999.
Federal-Mogul Dutch Holdings Inc.
/s/ Alan C. Johnson
By:__________________________________
Name: Alan C. Johnson
Title: President and Chief
Executive Officer
FEDERAL-MOGUL DUTCH HOLDINGS INC.
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 23rd day of June, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Alan C. Johnson Chief Executive Officer (Principal
___________________________________________ Executive Officer)
Alan C. Johnson
/s/ Thomas W. Ryan Chief Financial Officer (Principal
___________________________________________ Financial Officer)
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller (Principal Accounting Officer)
___________________________________________
Kenneth P. Slaby
/s/ Alan C. Johnson Director
___________________________________________
Alan C. Johnson
/s/ Thomas W. Ryan Director
___________________________________________
</TABLE> Thomas W. Ryan
II-17
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Southfield, State of Michigan, on June 24, 1999.
Carter Automotive Company, Inc.
/s/ Alan C. Johnson
By:__________________________________
Name: Alan C. Johnson
Title: President and Chief
Executive Officer
CARTER AUTOMOTIVE COMPANY, INC.
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 23rd day of June, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Alan C. Johnson Chief Executive Officer (Principal
___________________________________________ Executive Officer)
Alan C. Johnson
/s/ Thomas W. Ryan Chief Financial Officer (Principal
___________________________________________ Financial Officer)
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller (Principal Accounting Officer)
___________________________________________
Kenneth P. Slaby
/s/ Alan C. Johnson Director
___________________________________________
Alan C. Johnson
/s/ Thomas W. Ryan Director
___________________________________________
</TABLE> Thomas W. Ryan
II-18
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Southfield, State of Michigan, on June 24, 1999.
Federal-Mogul UK Holdings Limited
/s/ Alan C. Johnson
By:__________________________________
Name: Alan C. Johnson
Title: President and Chief
Executive Officer
FEDERAL-MOGUL UK HOLDINGS LIMITED
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 23rd of June, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Alan C. Johnson Chief Executive Officer (Principal
___________________________________________ Executive Officer)
Alan C. Johnson
/s/ Thomas W. Ryan Chief Financial Officer (Principal
___________________________________________ Financial Officer)
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller (Principal Accounting Officer)
___________________________________________
Kenneth P. Slaby
/s/ Alan C. Johnson Director
___________________________________________
Alan C. Johnson
/s/ Thomas W. Ryan Director
___________________________________________
</TABLE> Thomas W. Ryan
II-19
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Southfield, State of Michigan, on June 24, 1999.
Federal-Mogul Ignition Company
/s/ Gordon A. Ulsh
By:__________________________________
Name: Gordon A. Ulsh
Title: President and Chief
Executive Officer
FEDERAL-MOGUL IGNITION COMPANY
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 23rd of June, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Gordon A. Ulsh Chief Executive Officer (Principal
___________________________________________ Executive Officer)
Gordon A. Ulsh
/s/ Thomas W. Ryan Chief Financial Officer (Principal
___________________________________________ Financial Officer)
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller (Principal Accounting Officer)
___________________________________________
Kenneth P. Slaby
/s/ Gordon A. Ulsh Director
___________________________________________
</TABLE> Gordon A. Ulsh
II-20
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Southfield, State of Michigan, on June 24, 1999.
Federal-Mogul Products, Inc.
/s/ Gordon A. Ulsh
By:__________________________________
Name: Gordon A. Ulsh
Title: President and Chief
Executive Officer
FEDERAL-MOGUL PRODUCTS, INC.
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 23rd of June, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Gordon A. Ulsh Chief Executive Officer (Principal
___________________________________________ Executive Officer)
Gordon A. Ulsh
/s/ Thomas W. Ryan Chief Financial Officer (Principal
___________________________________________ Financial Officer)
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller (Principal Accounting Officer)
___________________________________________
Kenneth P. Slaby
/s/ Gordon A. Ulsh Director
___________________________________________
</TABLE> Gordon A. Ulsh
II-21
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Southfield, State of Michigan, on June 24, 1999.
Federal-Mogul Aviation, Inc.
/s/ Gordon A. Ulsh
By:__________________________________
Name: Gordon A. Ulsh
Title: President and Chief
Executive Officer
FEDERAL-MOGUL AVIATION, INC.
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 23rd of June, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Gordon A. Ulsh Chief Executive Officer (Principal
___________________________________________ Executive Officer)
Gordon A. Ulsh
/s/ Thomas W. Ryan Chief Financial Officer (Principal
___________________________________________ Financial Officer)
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller (Principal Accounting Officer)
___________________________________________
Kenneth P. Slaby
/s/ Gordon A. Ulsh Director
___________________________________________
Gordon A. Ulsh
/s/ Thomas W. Ryan Director
___________________________________________
</TABLE> Thomas W. Ryan
II-22
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Exhibit Description
------- -------------------
<C> <S>
2.1 Recommended Cash Offer for T&N plc, dated as of November 13, 1997.
(Incorporated by reference to Exhibit 2.1 to Federal-Mogul's Annual
Report on Form 10-K for the year ended December 31, 1997 (the "1997
10-K").)
2.2 Equity Purchase Agreement between the Company and The Sellers with
respect to the acquisition of Fel-Pro Incorporated, dated as of
January 9, 1998. (Incorporated by reference to Exhibit 2.2 to the 1997
10-K.)
2.3 Purchase and Sale Agreement between Cooper Industries, Inc. and
Federal-Mogul Corporation, dated August 17, 1998. (Incorporated by
reference to Exhibit 2.1 to Federal-Mogul's Current Report on Form 8-K
filed October 26, 1998.)
3.1 Federal-Mogul's Second Restated Articles of Incorporation, as amended.
(Incorporated by reference to Exhibit 3.1 to Federal-Mogul's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1999.)
3.2 Federal-Mogul's Bylaws, as amended (Incorporated by reference to
Exhibit 3.2 to Federal-Mogul's Form 10-K for the year ended December
31, 1998 (the "1998 10-K").)
*3.3 Federal-Mogul Dutch Holdings Inc.'s Certificate of Incorporation, as
amended.
*3.4 Federal-Mogul Dutch Holdings Inc.'s Bylaws.
*3.5 Federal-Mogul Global Inc.'s Articles of Incorporation.
*3.6 Federal-Mogul Global Inc.'s Bylaws.
*3.7 Federal-Mogul U.K. Holdings Inc.'s Certificate of Incorporation, as
amended.
*3.8 Federal-Mogul U.K. Holdings Inc.'s Bylaws.
*3.9 Carter Automotive Company, Inc.'s Certificate of Incorporation.
*3.10 Carter Automotive Company, Inc.'s Bylaws.
*3.11 Federal-Mogul Venture Corporation's Articles of Incorporation, as
amended.
*3.12 Federal-Mogul Venture Corporation's Bylaws.
*3.13 Federal-Mogul World Wide, Inc.'s Articles of Incorporation.
*3.14 Federal-Mogul World Wide, Inc.'s Bylaws.
*3.15 Federal-Mogul Global Properties, Inc.'s Articles of Incorporation.
*3.16 Federal-Mogul Global Properties, Inc.'s Bylaws.
*3.17 Felt Products Mfg. Co.'s Restated Certificate of Incorporation, as
amended.
*3.18 Felt Products Mfg. Co.'s Bylaws.
**3.19 F-M UK Holding Limited's Articles of Association.
**3.20 Federal-Mogul Ignition Company's Certificate of Incorporation.
**3.21 Federal-Mogul Ignition Company's Bylaws.
**3.22 Federal-Mogul Products, Inc.'s Articles of Incorporation.
**3.23 Federal-Mogul Products, Inc.'s Bylaws.
**3.24 Federal-Mogul Aviation, Inc.'s Articles of Incorporation.
</TABLE>
II-23
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Exhibit Description
------- -------------------
<C> <S>
**3.25 Federal-Mogul Aviation, Inc.'s Bylaws.
4.1 Rights Agreement dated as of February 24, 1999 between Federal-Mogul
and The Bank of New York, as Rights Agent. (Incorporated by reference
to Exhibit 4 to Federal-Mogul's Current Report on Form 8-K filed
February 25, 1999.)
4.2 Purchase Agreement for 10,000,000 Trust Convertible Preferred
Securities of Federal-Mogul Financing Trust, dated as of November 24,
1997. (Incorporated by reference to Exhibit 4.6 to the 1997 10-K.)
4.3 Registration Rights Agreement, dated as of December 1, 1997, by and
among Federal-Mogul, Federal-Mogul Financing Trust and Morgan Stanley
& Co. Inc. as Initial Purchaser. (Incorporated by reference to Exhibit
4.7 to the 1997 10-K.)
4.4 Indenture between Federal-Mogul and The Bank of New York, dated as of
December 1, 1997, with respect to the Subordinated Debentures.
(Incorporated by reference to Exhibit 4.8 to the 1997 10-K.)
4.5 First Supplemental Indenture between Federal-Mogul and The Bank of New
York, dated as of December 1, 1997, with respect to the Subordinated
Debentures. (Incorporated by reference to Exhibit 4.9 to the 1997 10-
K.)
4.6 Indenture among Federal-Mogul Corporation and The Bank of New York
dated as of January 20, 1999. (Incorporated by reference to Exhibit
4.8 to the 1998 10-K).
4.7 Registration Agreement, dated as of January 9, 1998, by and among
Federal-Mogul and the Investors identified on Schedule 1 thereto
relating to the Series E Mandatory Exchangeable Preferred Stock.
(Incorporated by reference to Exhibit 4.10 to the 1997 10-K.)
**4.8 Registration Rights Agreement, dated as of January 20, 1999, by and
among Federal-Mogul and the Initial Purchasers named therein.
4.9 Form of New Note (contained in Exhibit 4.6).
4.10 Form of Guarantee (contained in Exhibit 4.6).
**5 Opinion of David M. Sherbin, Esq.
10.1 Federal-Mogul's 1984 Stock Option Plan, as last amended. (Incorporated
by reference to Exhibit 10.2 to Federal-Mogul's Annual report or Form
10-K for the year ended December 31, 1994 (the "1994 10-K").)
10.2 Federal-Mogul Corporation 1989 Performance Incentive Stock Plan, as
amended. (Incorporated by reference to Exhibit 10.14 to the 1994 10-
K.)
10.3 Federal-Mogul Corporation 1997 Amended and Restated Long-Term
Incentive Plan, as adopted by the Shareholders of Federal-Mogul on May
20, 1998. (Incorporated by reference to Federal-Mogul's 1998
Definitive Proxy Statement on Form 14A.)
10.4 Federal-Mogul's 1977 Supplemental Compensation Plan, as amended and
restated. (Incorporated by reference to Exhibit 10.27 to Federal-
Mogul's Quarterly Report on Form 10-Q for the quarter ended June 30,
1994.)
10.5 Form of Executive Severance Agreement between Federal-Mogul and
certain executive officers. (Incorporated by reference to Exhibit 10.5
to Federal-Mogul's Annual Report on Form 10-K for the year ended
December 31, 1996 (the "1996 10-K").)
10.6 Amended and Restated Deferred Compensation Plan for Corporate
Directors. (Incorporated by reference to Exhibit 10.7 to Federal-
Mogul's Annual Report on Form 10-K for the year ended December 31,
1990 (the "1990 10-K").)
</TABLE>
II-24
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Exhibit Description
------- -------------------
<C> <S>
10.7 Supplemental Executive Retirement Plan, as amended. (Incorporated by
reference to Exhibit 10.10 to Federal-Mogul's Annual Report for the
year ended December 31, 1992 (the "1992 10-K").)
10.8 Description of Umbrella Excess Liability Insurance for the Senior
Management Team. (Incorporated by reference to Exhibit 10.11 to the
1990 10-K.)
10.9 Federal-Mogul Corporation Executive Loan Program. (Incorporated by
reference to Exhibit 10.26 to Federal-Mogul's Quarterly Report on Form
10-Q for the quarter ended March 31, 1994.)
10.10 Federal-Mogul Corporation Non-Employee Director Stock Plan.
(Incorporated by reference to Exhibit 4 to Federal-Mogul's
Registration Statement on Form S-8 (Registration No. 33-54301).)
10.11 Amended and Restated Declaration of Trust of Federal-Mogul Financing
Trust, dated as of December 1, 1997. (Incorporated by reference to
Exhibit 10.34 to the 1997 10-K.)
10.12 Common Securities Guarantee Agreement, dated as of December 1, 1997,
among Federal-Mogul and Federal-Mogul Financing Trust. (Incorporated
by reference to Exhibit 10.35 to the 1997 10-K.)
10.13 Third Amended and Restated Credit Agreement, dated as of February 24,
1999, in the amount of $1,750,000,000 among Federal-Mogul, The Foreign
Subsidiary Borrowers, the Lenders and The Chase Manhattan Bank.
(Incorporated by reference to Exhibit 10.13 to the 1998 10-K.)
10.14 Receivables Sale and Contribution Agreement, dated as of November 20,
1998, among Federal-Mogul, Carter Automotive Company, Inc., Federal-
Mogul Canada Limited and Federal-Mogul Funding Corporation.
(Incorporated by reference to Exhibit 10.14 to the 1998 10-K.)
10.15 Receivable Interest Purchase Agreement, dated as of November 20, 1998,
among Federal-Mogul, Federal-Mogul Funding Corporation, Falcon Asset
Securitization Corporation and The First National Bank of Chicago.
(Incorporated by reference to Exhibit 10.15 to the 1998 10-K.)
11 Computation of Per Share Earnings. (Incorporated by reference to the
1998 10-K.)
**12.1 Computation of Ratio of Earnings to Fixed Charges.
**12.2 Computation of Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends.
21 Subsidiaries of the Registrant. (Incorporated by reference to Exhibit
21 to the 1998 10-K).
**23.1 Consent of Ernst & Young LLP.
**23.2 Consent of KPMG Audit Plc.
**23.3 Consent of David M. Sherbin, Esq. (included in his opinion filed as
Exhibit 5).
**24.1 Power of Attorney for Federal-Mogul.
**24.2 Powers of Attorney of Guarantors.
**25 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Trustee under the
Indentures.
**99.1 Form of Letter of Transmittal.
**99.2 Form of Notice of Guaranteed Delivery.
**99.3 Form of Exchange Agreement.
</TABLE>
- --------
*Previously filed as an exhibit to Registration Statement Number 333-56725.
**Filed herewith.
***To be filed by amendment.
II-25
<PAGE>
EXHBIT 3.19
Company Number:3459039
The Companies Act 1985 to 1989
PRIVATE COMPANY LIMITED BY SHARES
--------------------------
--------------------------
MEMORANDUM
AND
ARTICLES OF ASSOCIATION
F-M UK HOLDING LIMITED
-------------------------------
Incorporated on the 31st day of October, 1997
<PAGE>
The Companies Act 1985 to 1989
--------------------------
PRIVATE COMPANY LIMITED BY SHARES
--------------------------
Memorandum of Association
of
F-M UK HOLDING LIMITED
(amended up to 12 March, 1998)
1. The Company's name is "F-M UK Holding Limited"/1/.
2. The Company's registered office is to be situated in England and Wales.
3. The objects of the Company are:
(a) to carry on business as a general commercial company and any trade or
business whatsoever and any lawful purpose pursuant to the Companies
Act 1985 (hereinafter called "the Act") as amended, extended or
applied by or under any other enactment or as re-enacted, and without
prejudice thereto but in furtherance thereof to carry on all or any of
the businesses of a holding company of other companies, firms and
businesses, and to acquire by purchase, lease, concession,
- --------------
/1/ The Company was incorporated under the name of Superglory Limited and
adopted its present name on 6 November, 1997.
<PAGE>
collectors, stocks and share brokers and dealers and commission and
general agents, merchants and traders; and to act as merchants
generally;
(b) to carry on any other trade or business whatsoever which can in the
opinion of the members or directors of the Company be conveniently or
advantageously or profitably carried on in connection with or
ancillary to any of the businesses of the Company or calculated
directly or indirectly to enhance the value or render more profitable
any of the Company's assets;
(c) to assume the obligations or any of them arising from the formation of
the Company and without prejudice to the generality thereof to pay all
costs, charges and expenses incurred or sustained in or about the
promotion or establishment of the Company or which the directors may
consider to be in the nature of preliminary expenses, and to novate or
otherwise assume any contracts entered into prior to incorporation of
the Company as the directors may think fit;
(d) to undertake or acquire all or any part of the business, assets and
liabilities of or any share in any company, partnership or person
carrying on or proposing to carry on all or any of the objects for the
time being of the Company, or to amalgamate, enter into partnership,
share profits, co-operate, or engage in mutual assistance with any
such company, partnership or person, and to give or accept by way of
consideration for any of the acts or things aforesaid or property
acquired, any shares, debentures, debenture stock or securities that
may be agreed upon, and to hold and retain, or sell, mortgage, change
and deal with any shares, debentures,
3
<PAGE>
debenture stock or securities however received, and to conduct and
carry on, liquidate or wind up any such business;
(e) to apply for, subscribe, take, purchase or otherwise acquire, hold and
deal with shares, debentures, options or other interests in or
securities of any other company so as to benefit directly or
indirectly the Company or enhance the value of its property, and to
co-ordinate, finance, manage, supervise or control the business and
operations of any company in which the Company may hold such interest;
(f) to acquire and take options over and deal with any property
whatsoever, including but without limit any shares in the capital of
the Company, and any rights or privileges of any kind over or in
respect of any property, and without limit to purchase, take on lease,
exchange, hire or otherwise acquire any estate or interest in any real
or personal property, and to deal with the same or any part thereof;
(g) to promote any other business for the purpose of acquiring the whole
or any part of the business, property, undertaking or liabilities of
the Company or of any business, property, undertaking or liabilities
which may appear likely to assist or benefit the Company or to enhance
the value of any property or business of the Company, and to subscribe
for, purchase or otherwise acquire or place or guarantee the placing
of or underwrite all or any part of the shares, debentures or
securities of any such company as aforesaid;
(h) to sell, let (including, but without limitation, by way of assured
shorthold tenancy), exchange, dispose of, turn to account, grant
licences, options, rights or privileges in respect of, mortgage,
charge or otherwise deal with all or any part of
4
<PAGE>
the business and property of whatever nature (whether or not as a
going concern) of the Company, and to deal in any manner as aforesaid
with the same or any part thereof either together or in portions for
such consideration whether shares, debentures, options, cash or real
or personal property of any other nature without limit as the members
or the directors of the Company may think fit;
(i) to erect, build, manufacture, improve, manage, construct, repair,
maintain, alter or develop any real or personal property;
(j) to invest and deal with any moneys in any manner, and to hold, alter,
dispose of or otherwise without limit deal with any investments so
made;
(k) to receive money on deposit or loan, and to borrow or raise money or
credit as may seem expedient without limit and whether with or without
any security or guarantee therefor, and to issue any debentures or
debenture stock whether perpetual, irredeemable or otherwise;
(l) to issue or grant any mortgage, charge, standard security, lien or
other security upon all or any part of the property or assets whether
present or future and including but without limit the uncalled capital
of the Company, and also by any such means to secure and guarantee the
performance by the Company, any holding, subsidiary or associated
company of the Company, or any other person, firm or company of any
obligation undertaken by the Company or any of them as the case may
be, and to stand security or guarantor for or otherwise support any
obligation of any other person, firm or company whether by personal
covenant, mortgage, charge, standard security or lien upon the whole
or any part of the
5
<PAGE>
undertaking, property and assets of the Company whether present or
future including but without limit its uncalled capital;
(m) to advance or lend money or give any credit to any person, firm or
company as the directors or members may think fit, and to give
financial assistance as statutorily permitted for the acquisition or
redemption of any shares, debentures, option rights or other security
of the Company;
(n) to draw, issue, accept, endorse, discount, negotiate, make or deal
with as may seem expedient cheques, bills of exchange or lading,
promissory notes, warrants, coupons, debentures, and other negotiable
or transferable notes or instruments;
(o) to seek any permission, order, privilege, charter, concession, decree,
right, or licence from any government department, national, local or
other statutory authority or official body in any part of the world
where the Company does or may do business or other official sanctions
for enabling the Company to pursue any of its objects for the time
being or for any other purpose which may seem calculated directly or
indirectly to promote the Company's interests, and comply with the
same, and to oppose or defend any proceedings or application which may
seem directly or indirectly to advance or prejudice the Company's
interests as the case may be;
(p) to seek in any part of the world and deal with, grant or obtain
licences in respect of, manufacture under, operate, test, improve, or
experiment on any invention, discovery, copyright, patent, brevet
d'invention, licence, secret process, trade mark, service mark,
design, registration, protection and concession as may seem
6
<PAGE>
expedient or beneficial, and to register, re-register, disclaim,
alter, modify, use, and turn to account the same or any of them;
(q) to act as principal, nominee, agent (whether disclosed or
undisclosed), broker, trustee, factor, contractor or sub contractor in
any part of the world;
(r) to pay, reward or remunerate anyone supplying goods or services to the
Company by cash, goods, services or any securities of the Company;
(s) to give to any charitable, benevolent or public cause or object which
may be for the benefit of the Company or any holding, subsidiary or
associated company of the Company or any directors or employees
thereof, and to provide or pay towards any pension, annuity, gratuity,
insurance, superannuation or other allowance or benefit, and generally
to provide advantages, facilities and services for any persons who are
or have been directors of, employed by, or serving the Company or any
holding, subsidiary or associated company of the Company or any
predecessor thereof and to the members of the family, dependants,
personal representatives or nominated beneficiaries of any such
persons, and to set up, establish, maintain, provide, contribute
towards and lend in favour of any incentive, profit-sharing, option,
or savings related scheme for the benefit of the employees of the
Company or any holding, subsidiary or associated company as aforesaid;
(t) to distribute among the members of the Company in specie or otherwise
any property of the Company of whatever nature, including but without
limit the shares, debentures or other securities of any other company
taking over the whole
7
<PAGE>
or any part of the undertaking, assets or liabilities of the Company,
and to purchase or assist the purchase of or redeem the shares for the
time being (including any redeemable shares) or reduce the capital of
the Company in any manner permitted under Part V of the Act;
(u) to carry on any of the objects for the time being of the Company in
any part of the world as principal or by or through agents, trustees,
brokers, sub-contractors or otherwise and either alone or with any
other person, firm or company;
(v) to do all such other things as are in the opinion of the Company
incidental or conducive to the above objects or any of them.
The objects specified in each of the paragraphs of this Clause shall not,
except where the context expressly so requires, be in any way limited or
restricted by the terms of any other paragraph and shall be construed as
separate, distinct and independent objects capable of being performed and
carried out separately, distinctly and independently of each other.
4. The liability of the Members is limited.
5. The Company's share capital is (pound)400,000,000 divided into
(pound)400,000,000 ordinary shares of(pound)1 each./2/
- -----------------
/2/ Amended 10 March, 1998
8
<PAGE>
WE, the subscribers to this Memorandum of Association, wish to be formed into a
company pursuant to this Memorandum; and we agree to take the number of shares
shown opposite our respective names.
- --------------------------------------------------------------------------------
Names and Address of Subscriber Number of shares
taken by each Subscriber
- --------------------------------------------------------------------------------
1. For and on behalf of One
Instant Companies Limited
1 Mitchell Lane
Bristol BS1 6BU
2. For and on behalf of One
Swift Incorporations Limited
1 Mitchell Lane
Bristol BS1 6BU
--------------------------------
Total shares taken Two
- --------------------------------------------------------------------------------
Dated this 1st day of October, 1997
WITNESS to the above Signatures:- Mark Anderson
1 Mitchell Lane
Bristol BS1 6BU
9
<PAGE>
The Companies Act 1985
--------------------------
A PRIVATE COMPANY LIMITED BY SHARES
--------------------------
Articles of Association
of
F-M UK HOLDING LIMITED
(adopted by special resolution on 12 March, 1998)
Regulations of the Company
1. The articles comprise these Articles and save insofar as it is modified by
these Articles, Table A (which expression means that Table as prescribed by
regulations made pursuant to the Companies Act 1985 (the "Act") and in
force on the date of incorporation of the Company).
2. Regulations 8, 24, 53, 54, 60-62 (inclusive), 65-69 (inclusive), 73-80
(inclusive), 87, 90, 93, 100 and 118 in Table A do not apply to the
Company.
<PAGE>
Share capital
3. The authorised share capital of the Company is(pounds)400,000,000 divided
into 400,000,000 ordinary shares of (pounds)1 each./3/
4. (1) Subject to paragraph (2) of this Article the directors are authorised
pursuant to Section 80(1) of the Act to allot shares up to the amount
of the authorised but unissued share capital of the Company from time
to time to such persons (including any directors) and on such
conditions as they think proper provided that no shares shall be
issued at a discount contrary to the Act.
(2) The authority conferred upon the directors by Article 4(1) shall
expire five years from the date of incorporation of the Company,
unless previously revoked, varied or renewed by an Ordinary Resolution
of the Company, but upon the expiration of such authority, the Company
may resolve by Ordinary Resolution to renew such authority subject to
such conditions as the Company may impose.
(3) Section 89(1) of the Act is hereby excluded.
Variation of rights
5. The rights attached to any existing shares shall not (unless otherwise
expressly provided by the terms of issue of such shares) be deemed to be
varied by the creation or issue of further shares ranking pari passu
therewith or subsequent thereto.
- -----------------
/3/ Amended 10 March, 1998.
11
<PAGE>
Share certificates
6. In Regulation 6 in Table A there shall be inserted after the word "seal"
the following words, namely: "or the official seal of the Company if the
Company has a seal, or otherwise executed in such manner as may be
permitted by the Act".
Lien
7. The Company shall have a first and paramount lien on all the shares
registered in the name of any member (whether solely or jointly with
others) for all moneys due to the Company from him or his estate, whether
solely or jointly with any person (whether a member or not) and whether
such moneys are presently payable or not. The Company's lien on a share
shall extend to all dividends or other moneys payable thereon or in respect
thereof. The directors may at any time resolve that any share shall be
exempt, wholly or partly, from the provisions of this Article.
Calls on shares
8. The directors may accept from any member the whole or any part of the
amount remaining unpaid on any share held by him notwithstanding that no
part of that amount has been called up.
Transfer of shares
9. The directors may, in their absolute discretion, and without assigning any
reason therefor, decline to register any transfer of shares, whether or not
it is a fully paid share; provided that the directors shall not be entitled
to decline to register any transfer of shares resulting
12
<PAGE>
from the enforcement of any security interest created by the Company in
favour of a third party./4/
Transmission of shares
10. There shall be inserted at the end of Regulation 31 in Table A the
following proviso, namely: "provided always that the directors may at any
time give notice requiring any such person to elect either to become or to
have another person registered as the holder of the share and if the
requirements of the notice are not complied with within 90 days the
directors may thereafter withhold payment of all dividends, bonuses or
other moneys payable in respect of the share until the requirements of the
notice have been complied with".
Proceedings at general meetings
11. In paragraph (b) of Regulation 38 in Table A there shall be inserted after
the words: "giving that right", the following words, namely: "(or such
lesser percentage as may be permitted by the Act and agreed by the
members)".
12. In Regulation 40 in Table A the following words shall be added to the end
of the second sentence, namely: "Except where the Company is a private
Company limited by shares or by guarantee and having one member, in which
case the quorum shall be one person, being the member or a proxy for the
member or a duly authorised representative of a corporation".
13. In Regulation 41 in Table A there shall be inserted after the words "the
directors may determine" the following words, namely: "and if at the
adjourned meeting such a quorum
- ----------------
/4/ Amended 14 January, 1999.
13
<PAGE>
is not present within half an hour from the time appointed for the meeting,
one member present in person or by proxy or (being a corporation) by its
duly authorised representative shall be a quorum".
14. A poll may be demanded by any member present in person or by proxy or
(being a corporation) by its duly authorised representative. Regulation 46
in Table A shall be construed accordingly.
15. A resolution in writing of all the members who would have been entitled to
vote upon it if it had been proposed at a general meeting at which they
were present shall be as effectual as if it had been passed at a general
meeting duly convened and held either:
(1) if it consists of an instrument executed by or on behalf of each such
member; or
(2) if it consists of several instruments in the like form each either:
(a) executed by or on behalf of one or more of such members; or
(b) sent by or on behalf of one or more of such members by telex or
facsimile transmission and deposited or received at the office or
received by the secretary.
Votes of members
16. Subject to any rights or restrictions as to voting attached to any shares
by the terms on which they were issued or by or in accordance with the
Articles or otherwise, on a show of hands every member who (being an
individual) is present in person or (being a corporation) is present by its
duly authorised representative not being himself a member entitled to vote,
shall have one vote, and on a poll every member who is present in person or
by proxy or (being a corporation) is present by its duly authorised
representative shall have one vote for every share of which he is the
holder.
14
<PAGE>
17. The instrument appointing a proxy shall be in writing in any usual or
common form and shall (except in the case of an appointment by telex or a
facsimile transmission of an appointment otherwise complying with the
requirements of this Article) be executed by the appointor or his attorney
duly authorised in writing or in such other form as the directors may
approve. A proxy need not be a member of the Company.
18. The instrument appointing a proxy and the power of attorney or other
authority (if any) under which it is executed, or a notarially certified
copy of such power or authority, shall be deposited or received at the
office (or at such other place in the United Kingdom as is specified for
that purpose in any instrument of proxy sent by the Company in relation to
the meeting) not less than forty-eight hours before the time for holding
the meeting or adjourned meeting at which the person named in the
instrument proposes to vote, or handed to the chairman of the meeting or
adjourned meeting, and, in default, the instrument of proxy shall be
invalid.
Alternate directors
20. (1) A director may by written notice signed by him (except in the case of
an appointment by telex or a facsimile transmission of an appointment
otherwise complying with the requirements of this Article) and
deposited or received at the office or received by the secretary or in
such other manner as the directors may approve appoint another
director or any other person to be and act as his alternate director.
(2) Every alternate director shall (subject to his giving to the Company
an address within the United Kingdom at which notices may be given to
him) be entitled to
15
<PAGE>
notice of meetings of the directors or of committees of directors, and
to attend and vote as a director at any such meeting at which the
director appointing him is entitled to attend and vote but is not
personally present and generally at such meeting to exercise all the
powers, rights duties and authorities of the director appointing him.
Every alternate director shall also be entitled to sign or, in the
case of a telex or facsimile transmission, send on behalf of the
director appointing him a resolution in writing of the directors
pursuant to Article 28.
(3) An alternate director shall neither be an officer of the Company nor
entitled to any remuneration from the Company for acting as an
alternate director.
(4) A director may by written notice signed by him or sent by him by telex
or facsimile transmission and deposited or received at the office or
received by the secretary or in such other manner as the directors may
approve at any time revoke the appointment of an alternate director
appointed by him.
(5) If a director shall cease to hold the office of director for any
reason, the appointment of his alternate director shall thereupon
automatically cease.
Delegation of directors' powers
21. The following words shall be added at the end of the first sentence of
Regulation 72 in Table A, namely: "and may also appoint to any such
committee persons who are not directors provided that the chairman and a
majority of such committee shall be directors".
16
<PAGE>
Retirement, appointment and removal of directors
22. Federal-Mogul Growth BV of Drentestraat 20, 1083 HK Amsterdam, The
Netherlands, its successors and assigns, shall have the power from time to
time and at any time to appoint any person or persons as a director or
directors and to remove from office any director howsoever appointed. Any
such appointment or removal shall be effected by an instrument which shall
be in writing and shall (except in the case of an appointment or removal by
telex or a facsimile copy of an appointment or removal otherwise complying
with the requirements of this Article) be executed by Federal-Mogul Growth
BV (or its successors or assigns, as the case may be) making the same or by
its duly authorized attorney or in such other manner as the directors may
approve, and shall take effect upon such appointment or removal being
deposited or received at the office or otherwise communicated to the
Company at the office or being handed or otherwise communicated to the
chairman of a meeting of the directors at which a quorum is present.
Disqualification and removal of directors
23. In Regulation 81 in Table A:
(1) there shall be inserted after the word "company" in paragraph (d) the
following words, namely: ", provided that such action shall be without
prejudice to the terms of and to any rights of the Company under any
contract between the director and the Company"; and
(2) paragraph (e) shall be deleted.
17
<PAGE>
Remuneration of directors
24. The following sentence shall be added at the end of Regulation 82 in
Table A, namely: "Any director who serves on any committee, or who
devotes special attention to the business of the Company, or who
otherwise performs services which in the opinion of the directors are
in addition to or outside the scope of the ordinary duties of a
director (which services shall include, without limitation, visiting or
residing abroad in connection with the Company's affairs), may be paid
such extra remuneration by way of salary, percentage of profits or
otherwise as the directors may determine".
Directors' appointments and interests
25. In Regulation 84 in Table A there shall be substituted for the words "shall
not be subject to retirement by rotation" the following words, namely:
"shall be subject to the same provisions as to resignation and removal as
other directors of the Company".
Directors' and employees' gratuities and pensions
26. The directors may:
(1) establish and maintain, or procure the establishment and maintenance
of, any share option or share incentive or profit-sharing schemes or
trusts or any non-contributory or contributory pension or
superannuation schemes or funds for the benefit of, and may make or
give or procure the making or giving of loans, donations, gratuities,
pensions, allowances or emoluments (whether in money or money's-worth)
to, or to trustees on behalf of, any persons who are or were at any
time in the employment or service of the Company, or of any company
which is a subsidiary of the Company, or is allied to or associated
with the Company or with any such subsidiary, or who are or were at
any time directors or officers of the
18
<PAGE>
Company or of any such other company as aforesaid, and to the wives,
husbands, widows, widowers, families and dependants of any such
persons;
(2) establish and subsidise or subscribe to any institutions,
associations, clubs or funds calculated to be for the benefit of, or
to advance the interests and well-being of the Company, or of any such
other company as aforesaid, or of any such persons as aforesaid;
(3) make payments for or towards policies of assurance on the lives of any
such persons and policies of insurance for the benefit of or in
respect of any such persons (including insurance against their
negligence or breach of duty to the Company) as aforesaid;
(4) pay, subscribe or guarantee money to or for any charitable or
benevolent objects, or for any exhibition, or for any political,
public, general or useful object; and
(5) do any of the above things either alone or in conjunction with any
such other company as aforesaid.
Subject always, if the Act shall so require, to particulars with respect to the
proposed payment being disclosed to the members of the Company and to the
payment being approved by the Company, any director shall be entitled to
participate in and retain for his own benefit any such loan, donation, gratuity,
pension, allowance or emolument.
Proceedings of directors
27. In Regulation 88 in Table A there shall be substituted for the third
sentence the following sentences, namely: "Every director shall be given
not less than 48 hours' notice of every
19
<PAGE>
meeting of the directors, such notice to be sent to such address as is
notified by him to the Company for this purpose or otherwise communicated
to him personally. Any director may by notice to the Company either before
or after the meeting waive his right to receive notice of the meeting and
any director who either:
(1) is present at the commencement of a meeting whether personally or by
his alternate director; or
(2) does not, within seven days following its coming to his attention that
a meeting has taken place without prior notice of such meeting having
been given to him pursuant to this Regulation, notify the Company that
he desires the proceedings at such meeting to be regarded as a
nullity,
shall be deemed hereafter to have waived his right to receive notice of
such meeting pursuant to this Regulation".
28. The following sentence shall be substituted for the final sentence of
Regulation 89 in Table A, namely: "For the purpose of determining whether a
quorum exists for the transaction of the business of the board of
directors:
(1) in the case of a resolution of directors, who would (if attending a
meeting) comprise a quorum, who are in telephonic communication with
one another, any such resolution shall be as valid and effectual as if
passed at a meeting of the board of directors duly convened and held;
20
<PAGE>
(2) in the case of a meeting of the board of directors, in addition to the
directors present at the meeting, any director in telephonic
communication with such meeting shall be counted in the quorum and
entitled to vote; and
(3) any person attending a meeting of the board, or in telephonic
communication with such a meeting, who is both a director and is
acting as an alternate director for one or more of the directors
shall, for the purposes of the quorum, be counted as one for each such
person for whom he is acting as an alternate director and, if
applicable, also be counted as a director, but not less than two
individuals shall constitute a quorum".
29. A resolution in writing of all the directors or all the members of a
committee of directors shall be as effectual as if it has been passed at a
meeting of directors or (as the case may be) a committee of directors duly
convened and held either:
(1) if it consists of an instrument executed by or on behalf of each such
director or committee member; or
(2) if it consists of several instruments in the like from each either:
(a) executed by or on behalf of one or more of such directors or
committee members; or
(b) sent by or on behalf of one or more of such directors or
committee members by telex or facsimile transmission and
deposited or received at the office or received by the secretary.
21
<PAGE>
30. Subject to any requisite declaration of interest in accordance with the
provisions of the Act and (if applicable) Regulation 85 in Table A having
been made by him a director may vote as a director in regard to any
transaction or arrangement in which he is interested, or upon any matter
arising therefrom and Regulation 94 in Table A shall be construed subject
to this provision.
31. In Regulation 97 in Table A:
(1) there shall be inserted after the words "the appointment" the
following words, namely: "or the terms of appointment"; and
(2) the following words shall be deleted, namely: "and be counted in the
quorum" and there shall be inserted after the words "his own
appointment" the following words, namely: "and shall be counted in the
quorum in respect of each resolution including that concerning his own
appointment, and Regulation 95 shall be construed subject to this
provision."
Minutes
32. The directors shall cause minutes to be made in books kept for the purpose:
(1) of all appointments of officers and alternate directors made by the
directors; and
(2) of all proceedings at meetings of the Company, of the holders of any
class of shares in the Company, of the directors, and of committees of
directors, including the names of the persons present at each such
meeting.
22
<PAGE>
The seal
33. In Regulation 101 of the Table, there shall be substituted for the first
sentence the following sentence, namely: "The Company need not have a seal
but if the Company does have a seal, the seal shall only be used by the
authority of the directors or of a committee of directors authorised by the
directors".
34. The Company is authorised pursuant to Section 39 of the Act for so long as
its objects require or comprise the transaction of business in foreign
countries to have an official seal for use in any territory, district, or
place elsewhere than in the United Kingdom.
Notices
35. In Regulation 112 of Table A, the final sentence shall be deleted and the
following words shall be inserted at the end of the first sentence, namely:
"or by sending it by telex or facsimile transmission to such telex or
facsimile number as the member shall have given to the Company for the
purpose".
36. In Regulation 115 of Table A, there shall be inserted:
(1) after the words: "prepaid and posted", the following words, namely:
"or that a notice was properly sent by telex or facsimile
transmission"; and
(2) after the words: "was posted" the following words, namely "or after
the time at which it was sent by telex or facsimile transmission".
Indemnity
37. Subject to the provisions of the Act, every director, other officer or
auditor of the Company or person acting as an alternate director shall be
entitled to be indemnified out
23
<PAGE>
of the assets of the Company against all costs, charges, expenses, losses
or liabilities which he may sustain or incur in or about the execution of
his duties to the Company or otherwise in relation thereto.
24
<PAGE>
- --------------------------------------------------------------------------------
Names and Address of Subscriber Number of shares
taken by each Subscriber
- --------------------------------------------------------------------------------
1. For and on behalf of One
Instant Companies Limited
1 Mitchell Lane
Bristol BS1 6BU
2. For and on behalf of One
Swift Incorporations Limited
1 Mitchell Lane
Bristol BS1 6BU
------------------------
Total shares taken Two
- --------------------------------------------------------------------------------
Dated this 1st day of October, 1997
WITNESS to the above Signatures:- Mark Anderson
1 Mitchell Lane
Bristol BS1 6BU
25
<PAGE>
Exhibit 3.20
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING FEDERAL-MOGUL INTERAMERICANA, LTD.
WITH AND INTO
FEDERAL-MOGUL IGNITION COMPANY
Pursuant to Section 253 of the Delaware General Corporation Law (the
"Code"), the undersigned, Federal-Mogul Ignition Company, a Delaware corporation
(the "Corporation"), does hereby certify:
FIRST: That the Corporation was incorporated and duly organized pursuant
to the Code and is validly existing as a Delaware corporation.
SECOND: That the Corporation owns all of the issued and outstanding
shares of common stock of Federal-Mogul Interamericana, Ltd., a Delaware
corporation (the "Subsidiary"). The Subsidiary does not have any other class or
series of capital stock outstanding.
THIRD: That the Corporation, by resolutions duly adopted by its Board of
Directors on the 20th day of November, 1998, determined, pursuant to Section 253
of the Code, to merge the Subsidiary with and into the Corporation and to assume
all of the Subsidiary's obligations, and that a copy of said resolutions and the
conditions set forth in such resolutions are in the form hereinafter set forth:
WHEREAS, the Board of Directors of the Corporation has determined that
it is in the best interests of the Corporation to merge its wholly-owned
subsidiary, Federal-Mogul Interamericana, Ltd., a Delaware corporation
("Interamericana"), with and into the Corporation, and to have
Interamericana's's separate existence cease and terminate, and to conduct
the business of Interamericana and assume all of the obligations of
Interamericana (collectively with the other mergers stated herein, the
"Mergers");
NOW THEREFORE, BE IT RESOLVED, that the Mergers are authorized and
approved in all respects, and the officers of the Corporation be, and each
(acting alone) hereby is, authorized and empowered in the name of and on
behalf of the Corporation to take or cause to be taken all such actions and
to sign, execute, verify, acknowledge, certify to, file and deliver all
such instruments and documents, as shall be in the judgment of any such
officer, necessary, desirable or appropriate in order to effectuate the
Mergers and to perform the obligations of the Corporation under the laws of
the State of Delaware and any other state required for the Mergers and as a
result of the Mergers, including, but not limited to, filing a Certificate
of Ownership and Merger with the Delaware Secretary of State, and any and
all documents necessary in jurisdictions of foreign qualification; and
1
<PAGE>
BE IT FURTHER RESOLVED, that any and all prior actions taken by the
officers of the Corporation or an agent or employee of the Corporation
under the direction of such officer in connection with the actions
authorized in the above resolutions hereby are ratified, confirmed,
authorized and approved in all respects.
FOURTH: That the Subsidiary shall merge with and into the Corporation,
whereupon the Subsidiary shall cease to exist and the Corporation shall be the
surviving entity of such Merger, and the Corporation shall assume all of the
obligations of the Subsidiary.
FIFTH: This Certificate of Ownership and Merger shall be effective as of
December 31, 1998.
IN WITNESS WHEREOF, the undersigned authorized officer of Federal-Mogul
Ignition Company has executed this Certificate of Ownership and Merger on behalf
of the surviving corporation, this 20th day of November, 1998.
FEDERAL-MOGUL IGNITION COMPANY
By: /s/ David A. Bozynski
----------------------------------
Name: David A. Bozynski
Title: Vice President and Treasurer
2
<PAGE>
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING FEDERAL-MOGUL A & S COMPANY
WITH AND INTO
FEDERAL-MOGUL IGNITION COMPANY
Pursuant to Section 253 of the Delaware General Corporation Law (the
"Code"), the undersigned, Federal-Mogul Ignition Company, a Delaware corporation
(the "Corporation"), does hereby certify:
FIRST: That the Corporation was incorporated and duly organized pursuant
to the Code and is validly existing as a Delaware corporation.
SECOND: That the Corporation owns all of the issued and outstanding
shares of common stock of Federal-Mogul A & S Company, a Delaware corporation
(the "Subsidiary"). The Subsidiary does not have any other class or series of
capital stock outstanding.
THIRD: That the Corporation, by resolutions duly adopted by its Board of
Directors on the 20th day of November, 1998, determined, pursuant to Section 253
of the Code, to merge the Subsidiary with and into the Corporation and to assume
all of the Subsidiary's obligations, and that a copy of said resolutions and the
conditions set forth in such resolutions are in the form hereinafter set forth:
WHEREAS, the Board of Directors of the Corporation has determined that
it is in the best interests of the Corporation to merge its wholly-owned
subsidiary, Federal-Mogul A & S Company, a Delaware corporation ("A & S"),
with and into the Corporation, and to have A & S' separate existence cease
and terminate, and to conduct the business of A & S and assume all of the
obligations of A & S (collectively with the other mergers stated herein,
the "Mergers");
NOW THEREFORE, BE IT RESOLVED, that the Mergers are authorized and
approved in all respects, and the officers of the Corporation be, and each
(acting alone) hereby is, authorized and empowered in the name of and on
behalf of the Corporation to take or cause to be taken all such actions and
to sign, execute, verify, acknowledge, certify to, file and deliver all
such instruments and documents, as shall be in the judgment of any such
officer, necessary, desirable or appropriate in order to effectuate the
Mergers and to perform the obligations of the Corporation under the laws of
the State of Delaware and any other state required for the Mergers and as a
result of the Mergers, including, but not limited to, filing a Certificate
of Ownership and Merger with the Delaware Secretary of State, and any and
all documents necessary in jurisdictions of foreign qualification; and
1
<PAGE>
BE IT FURTHER RESOLVED, that any and all prior actions taken by the
officers of the Corporation or an agent or employee of the Corporation
under the direction of such officer in connection with the actions
authorized in the above resolutions hereby are ratified, confirmed,
authorized and approved in all respects.
FOURTH: That the Subsidiary shall merge with and into the Corporation,
whereupon the Subsidiary shall cease to exist and the Corporation shall be the
surviving entity of such Merger, and the Corporation shall assume all of the
obligations of the Subsidiary.
FIFTH: This Certificate of Ownership and Merger shall be effective as of
December 31, 1998.
IN WITNESS WHEREOF, the undersigned authorized officer of Federal-Mogul
Ignition Company has executed this Certificate of Ownership and Merger on behalf
of the surviving corporation, this 20th day of November, 1998.
FEDERAL-MOGUL IGNITION COMPANY
By: /s/ David A. Bozynski
---------------------------------------
Name: David A. Bozynski
Title: Vice President and Treasurer
2
<PAGE>
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING FEDERAL-MOGUL CHESTERFIELD, INC.
WITH AND INTO
FEDERAL-MOGUL IGNITION COMPANY
Pursuant to Section 253 of the Delaware General Corporation Law (the
"Code"), the undersigned, Federal-Mogul Ignition Company, a Delaware corporation
(the "Corporation"), does hereby certify:
FIRST: That the Corporation was incorporated and duly organized pursuant
to the Code and is validly existing as a Delaware corporation.
SECOND: That the Corporation owns all of the issued and outstanding shares
of common stock of Federal-Mogul Chesterfield, Inc., a Delaware corporation (the
"Subsidiary"). The Subsidiary does not have any other class or series of capital
stock outstanding.
THIRD: That the Corporation, by resolutions duly adopted by its Board of
Directors on the 20th day of November, 1998, determined, pursuant to Section 253
of the Code, to merge the Subsidiary with and into the Corporation and to assume
all of the Subsidiary's obligations, and that a copy of said resolutions and the
conditions set forth in such resolutions are in the form hereinafter set forth:
WHEREAS, the Board of Directors of the Corporation has determined that
it is in the best interests of the Corporation to merge its wholly-owned
subsidiary, Federal-Mogul Chesterfield, Inc., a Delaware corporation
("Chesterfield"), with and into the Corporation, and to have Chesterfield's
separate existence cease and terminate, and to conduct the business of
Chesterfield and assume all of the obligations of Chesterfield
(collectively with the other mergers stated herein, the "Mergers");
NOW THEREFORE, BE IT RESOLVED, that the Mergers are authorized and
approved in all respects, and the officers of the Corporation be, and each
(acting alone) hereby is, authorized and empowered in the name of and on
behalf of the Corporation to take or cause to be taken all such actions and
to sign, execute, verify, acknowledge, certify to, file and deliver all
such instruments and documents, as shall be in the judgment of any such
officer, necessary, desirable or appropriate in order to effectuate the
Mergers and to perform the obligations of the Corporation under the laws of
the State of Delaware and any other state required for the Mergers and as a
result of the Mergers, including, but not limited to, filing a Certificate
of Ownership and Merger with the Delaware Secretary of State, and any and
all documents necessary in jurisdictions of foreign qualification; and
1
<PAGE>
BE IT FURTHER RESOLVED, that any and all prior actions taken by the
officers of the Corporation or an agent or employee of the Corporation
under the direction of such officer in connection with the actions
authorized in the above resolutions hereby are ratified, confirmed,
authorized and approved in all respects.
FOURTH: That the Subsidiary shall merge with and into the Corporation,
whereupon the Subsidiary shall cease to exist and the Corporation shall be the
surviving entity of such Merger, and the Corporation shall assume all of the
obligations of the Subsidiary.
FIFTH: This Certificate of Ownership and Merger shall be effective as of
December 31, 1998.
IN WITNESS WHEREOF, the undersigned authorized officer of Federal-Mogul
Ignition Company has executed this Certificate of Ownership and Merger on behalf
of the surviving corporation, this 20th day of November, 1998.
FEDERAL-MOGUL IGNITION COMPANY
By: /s/ Thomas W. Ryan
--------------------------------
Name: Thomas W. Ryan
Title: Vice President
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Champion Spark Plug Company, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That the Board of Directors of said Corporation, by the unanimous
written consent of its members, filed with the minutes of the Board a resolution
proposing and declaring advisable the following amendment to the Certificate of
Incorporation of said Corporation:
RESOLVED, that the Certificate of Incorporation of Champion Spark Plug
Company be amended by changing the First Article thereof so that, as
amended, said Article shall be and read as follows:
"The name of the Corporation is: Federal-Mogul Ignition Company."
SECOND: That in lieu of a meeting and vote of stockholders, the stockholders
have given unanimous written consent to said amendment in accordance with the
provisions of Section 228 of the General Corporation Law of the State of
Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with the
applicable provisions of Sections 141 and 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed by
David M. Sherbin, its Assistant Secretary, this 29th day of October, 1998.
/s/ David M. Sherbin
-----------------------------
By: David M. Sherbin
Title: Assistant Secretary
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CERTIFICATE
OF
OWNERSHIP AND MERGER
OF
LIVINGSTON INDUSTRIES, INC.
INTO
CHAMPION SPARK PLUG COMPANY
Champion Spark Plug Company, a corporation organized and existing under the laws
of the State of Delaware,
DOES HEREBY CERTIFY AS FOLLOWS:
FIRST: That this Corporation was incorporated on December 5, 1938
pursuant to the General Corporation Law of the State of Delaware.
SECOND: That the outstanding shares of Livingston Industries, Inc. total
8,600, and that this Corporation owns all of the outstanding shares of
Livingston Industries, Inc., a corporation incorporated on January 27, 1971,
pursuant to the General Corporation Law of the State of California.
THIRD: That this Corporation, by the following resolutions of its Board
of Directors, duly adopted by the unanimous written consent of its members and
filed with the minutes of the Board as of the 25th day of November, 1991,
determined to merge into itself said Livingston Industries, Inc.:
RESOLVED, that it is deemed advisable to merge Livingston Industries,
Inc. into this Corporation upon the terms of the Merger Agreement attached
hereto as Exhibit A; and
FURTHER RESOLVED, that said Merger Agreement and the merger provided
for therein be and they hereby are approved; and
FURTHER RESOLVED, that the proper officers of this Corporation be and
they hereby are authorized and directed to execute said Merger Agreement;
and
FURTHER RESOLVED, that the merger be effective as of the close of
business on December 31, 1991; and
FURTHER RESOLVED, that the proper officers of this Corporation be and
they hereby are directed to make and execute a Certificate of Ownership and
Merger setting forth (i) a copy of these resolutions to merge into this
Corporation said Livingston Industries, Inc. and assume its liabilities and
obligations, and (ii) the date of adoption hereof, and to cause the same to
be filed with the Secretary of State of Delaware and a certified copy to be
recorded
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in the office of the Recorder of Deeds of New Castle County and to do all
acts and things whatsoever, whether within or without the State of
Delaware, which may be in anywise necessary or proper to effect said
merger.
IN WITNESS WHEREOF, said Champion Spark Plug Company has caused this
certificate to be signed by D. Bradley McWilliams, its Vice President, and
attested by Karen E. Herbert, its Assistant Secretary, as of the 25th day of
November, 1991.
CHAMPION SPARK PLUG COMPANY
(Corporate Seal)
ATTEST
By /s/ D. Bradley McWilliams
-----------------------------
D. Bradley McWilliams
Vice President
By /s/ Karen E. Herbert
-----------------------------
Karen E. Herbert
Assistant Secretary
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EXHIBIT A
MERGER AGREEMENT
MERGER AGREEMENT made as of the 25th day of November, 1991 by and between
Champion Spark Plug Company, a corporation of the State of Delaware (hereinafter
referred to as the "Surviving Corporation"), and Livingston Industries, Inc., a
corporation of the State of California (hereinafter referred to as the "Merging
Corporation").
WHEREAS, the Surviving Corporation owns all of the outstanding stock of the
Merging Corporation and the directors of the Surviving Corporation and the
Merging Corporation believe that it will be in the best interests of each
corporation that the Merging Corporation be merged into the Surviving
Corporation;
NOW THEREFORE, in consideration of the premises and mutual covenants herein
contained, the Surviving Corporation and the Merging Corporation hereby agree as
follows:
1. The Merging Corporation shall merge into the Surviving Corporation,
and upon the effective date of such merger, as hereinafter specified, the
Merging Corporation shall cease to exist and shall no longer exercise its
powers, privileges and franchises. The Surviving Corporation shall succeed to
the property and assets of and exercise all the powers, privileges and
franchises of the Merging Corporation and shall assume and be liable for all of
the debts and liabilities, if any, of the Merging Corporation.
2. The shares of stock of the Merging Corporation shall not be converted
into shares of the Surviving Corporation, but shall be canceled and the
authorized capital stock of the Surviving Corporation shall not be changed, but
shall be and remain as before the merger.
3. The state of incorporation of the Surviving Corporation shall be and
remain the State of Delaware.
4. The officers and directors of the Surviving Corporation shall be the
same officers and directors in office immediately prior to the merger.
5. The name of the Surviving Corporation, upon the effective date of the
merger, shall be "Champion Spark Plug Company."
6. All provisions of the existing certificate of incorporation of the
Surviving Corporation as in effect immediately prior to the merger and on file
with the Secretary of State of Delaware shall constitute the certificate of
incorporation of the Surviving Corporation until the same shall be properly
altered, amended or repealed.
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7. The bylaws of the Surviving Corporation as in effect immediately prior
to the merger shall be and constitute the bylaws of the Surviving Corporation
until the same shall be properly altered, amended or repealed.
8. Each of the Merging Corporation and the Surviving Corporation shall
take or cause to be taken, all action, or do or cause to be done, all things
necessary, proper or advisable under the laws of the States of California and
Delaware, to consummate and make effective the merger.
9. If at any time the Surviving Corporation shall consider or be advised
that any further assignment or assurance in law is necessary or desirable to
vest in the Surviving Corporation the title and property or rights of the
Merging Corporation, the proper officers and directors of the Merging
Corporation shall execute and make all such proper assignments and assurances in
law and do all things necessary or proper to vest such property or rights in the
Surviving Corporation, and otherwise to carry out the purposes of this Merger
Agreement, and the proper officers and directors of the Surviving Corporation
are fully authorized in the name of the Merging Corporation, or otherwise, to
take any and all such action.
10. This Merger Agreement has been duly authorized by the Board of
Directors of the Surviving Corporation and the Merging Corporation in accordance
with the laws of the States of California and Delaware and is signed and sealed
by the duly authorized officers of each such corporation a party hereto as of
the day and year first above written.
11. No consent of the shareholders of either of the Merging Corporation or
the Surviving Corporation is required under applicable law to authorize the
merger.
12. The merger shall be effective as of the close of business on December
31, 1991.
CHAMPION SPARK PLUG COMPANY LIVINGSTON INDUSTRIES, INC.
By /s/ D. Bradley McWilliams By /s/ E. Daniel Leightman
-------------------------- ---------------------------
D. Bradley McWilliams E. Daniel Leightman
Vice President Vice President
By /s/ Karen Herbert By /s/ Diane K. Schumacher
--------------------------- ---------------------------
Karen Herbert Diane K. Schumacher
Assistant Secretary Secretary
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<PAGE>
CERTIFICATE
OF
OWNERSHIP AND MERGER
OF
IOWA INDUSTRIES, INC.
INTO
CHAMPION SPARK PLUG COMPANY
Champion Spark Plug Company, a corporation organized and existing under the laws
of the State of Delaware,
DOES HEREBY CERTIFY AS FOLLOWS:
FIRST: That this Corporation was incorporated on December 5, 1938
pursuant to the General Corporation Law of the State of Delaware.
SECOND: That this Corporation owns all of the outstanding shares of Iowa
Industries, Inc., a corporation incorporated on December 23, 1955 pursuant to
the General Corporation Law of the State of Delaware.
THIRD: That this Corporation, by the following resolutions of its Board
of Directors, duly adopted by the unanimous written consent of its members and
filed with the minutes of the Board as of the 31st of March, 1991, determined to
merge and did merge into itself said Iowa Industries, Inc.:
RESOLVED, That it is deemed advisable to merge Iowa Industries, Inc.
into this Corporation upon the terms of the Merger Agreement attached
hereto as Exhibit A; and
FURTHER RESOLVED, That said Merger Agreement and the merger provided
for therein be and they hereby are approved; and
FURTHER RESOLVED, That the proper officers of this Corporation be and
they hereby are authorized and directed to execute said Merger Agreement;
and
FURTHER RESOLVED, That the merger be effective as of March 31, 1991;
and
FURTHER RESOLVED, That the proper officers of this Corporation be and
they hereby are directed to make and execute a Certificate of Ownership and
Merger setting forth (i) a copy of these resolutions to merge into this
Corporation said Iowa Industries, Inc. and assume its liabilities and
obligations, and (ii) the date of adoption hereof, and to cause the same to
be filed with the Secretary of State of Delaware and a certified copy to be
recorded in the office of the Recorder of Deeds of New Castle County and to
do all acts and things
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whatsoever, whether within or without the State of Delaware, which may be
in anywise necessary or proper to effect said merger.
IN WITNESS WHEREOF, said Champion Spark Plug Company has caused this
certificate to be signed by D. Bradley McWilliams, its Vice President, and
attested by Diane K. Schumacher, its Secretary, as of the 31st day of March,
1991.
CHAMPION SPARK PLUG COMPANY
(Corporate Seal)
ATTEST
By /s/ D. Bradley McWilliams
--------------------------------
D. Bradley McWilliams
Vice President
By /s/ Diane K. Schumacher
-------------------------------
Diane K. Schumacher
Secretary
2
<PAGE>
EXHIBIT A
MERGER AGREEMENT
MERGER AGREEMENT made as of the 31st day of March, 1991 by and between Champion
Spark Plug Company, a corporation of the State of Delaware (hereinafter referred
to as the "Surviving Corporation"), and Iowa Industries, Inc., a corporation of
the State of Delaware (hereinafter referred to as the "Merging Corporation").
WHEREAS, the Surviving Corporation owns all of the outstanding stock of the
Merging Corporation and the directors of the Surviving Corporation and the
Merging Corporation believe that it will be in the best interests of each
corporation that the Merging Corporation be merged into the Surviving
Corporation;
NOW THEREFORE, in consideration of the premises and mutual covenants herein
contained, the Surviving Corporation and the Merging Corporation hereby agree as
follows:
1. The Merging Corporation shall merge into the Surviving Corporation,
and upon the effective date of such merger, as hereinafter specified, the
Merging Corporation shall cease to exist and shall no longer exercise its
powers, privileges and franchises. The Surviving Corporation shall succeed to
the property and assets of and exercise all the powers, privileges and
franchises of the Merging Corporation and shall assume and be liable for all of
the debts and liabilities, if any, of the Merging Corporation.
2. The shares of stock of the Merging Corporation shall not be converted
into shares of the Surviving Corporation, but shall be canceled and the
authorized capital stock of the Surviving Corporation shall not be changed, but
shall be and remain as before the merger.
3. The state of incorporation of the Surviving Corporation shall be and
remain the State of Delaware.
4. The officers and directors of the Surviving Corporation shall be the
same officers and directors in office immediately prior to the merger.
5. The name of the Surviving Corporation, upon the effective date of the
merger, shall be "Champion Spark Plug Company."
6. All provisions of the existing certificate of incorporation of the
Surviving Corporation as in effect immediately prior to the merger and on file
with the Secretary of State of Delaware shall constitute the certificate of
incorporation of the Surviving Corporation until the same shall be properly
altered, amended or repealed.
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7. The bylaws of the Surviving Corporation as in effect immediately prior
to the merger shall be and constitute the bylaws of the Surviving Corporation
until the same shall be properly altered, amended or repealed.
8. Each of the Merging Corporation and the Surviving Corporation shall
take or cause to be taken, all action, or do or cause to be done, all things
necessary, proper or advisable under the laws of the State of Delaware, to
consummate and make effective the merger.
9. If at any time the Surviving Corporation shall consider or be advised
that any further assignment or assurance in law is necessary or desirable to
vest in the Surviving Corporation the title and property or rights of the
Merging Corporation, the proper officers and directors of the Merging
Corporation shall execute and make all such proper assignments and assurances in
law and do all things necessary or proper to vest such property or rights in the
Surviving Corporation, and otherwise to carry out the purposes of this Merger
Agreement, and the proper officers and directors of the Surviving Corporation
are fully authorized in the name of the Merging Corporation, or otherwise, to
take any and all such action.
10. This Merger Agreement has been duly authorized by the Board of
Directors of the Surviving Corporation and the Merging Corporation in accordance
with the laws of the State of Delaware and is signed and sealed by the duly
authorized officers of each such corporation a party hereto as of the day and
year first above written.
11. No consent of the shareholders of either of the Merging Corporation or
the Surviving Corporation is required under applicable law to authorize the
merger.
12. The merger shall be effective as of March 31, 1991.
CHAMPION SPARK PLUG COMPANY IOWA INDUSTRIES, INC.
By /s/ D. Bradley McWilliams By /s/ E. Daniel Leightman
------------------------------ ----------------------------
D. Bradley McWilliams E. Daniel Leightman
Vice President Vice President
2
<PAGE>
CERTIFICATE OF MERGER
OF
SPARK PLUG ACQUISITION COMPANY
INTO
CHAMPION SPARK PLUG COMPANY
The undersigned corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
NAME STATE OF INCORPORATION
Spark Plug Acquisition Company Delaware
Champion Spark Plug Company Delaware
SECOND: That an agreement of merger between the parties to the merger has
been approved, adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with the requirements of Section 251 of
the General Corporation Law of the State of Delaware.
THIRD: The name of the surviving corporation of the merger is Champion
Spark Plug Company.
FOURTH: That from and after the effective date of the merger the
Certificate of Incorporation shall be amended in full as follows:
"1. The name of the corporation is:
CHAMPION SPARK PLUG COMPANY
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2. The address of its registered office in the State of Delaware is
Corporate Trust Center, 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of its registered agent at such address is The Corporation
Trust Company.
3. The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act of activity for which corporations may be organized
under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall have
authority to issue is Two Thousand (2,000), of which stock One Thousand (1,000)
shares of the par value of One Cent ($.01) each, amounting in the aggregate to
Ten Dollars ($10.00) shall be Common stock and of which One Thousand (1,000)
shares of the par value of One Cent ($.01) each, amounting in the aggregate to
Ten Dollars ($10.00) shall be Preferred stock.
5. The board of directors is authorized to make, alter or repeal the by-
laws of the corporation. Election of directors need not be by written ballot.
6. The name and place of residence of each of the incorporators are as
follows:
L. E. Gray Wilmington, Delaware
L. H. Herman Wilmington, Delaware
Walter Lenz Wilmington, Delaware
7(a) Any person who was or is a director of the corporation shall not be
personally liable to the corporation 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 corporation 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, or (iv) for any transaction from which the
director derived an improper personal benefit. This Section 7(a) shall not
eliminate or limit the liability of a director for any act or omission occurring
prior to the adoption of this Article 7.
7(b) The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
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<PAGE>
or proceedings, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
7(c) The corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or complete action
or suit by or in the right of a corporation to procure a judgment in its favor
by reason of the fact that he is or was an officer, director, employee or agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person in fairly and reasonably
entitled to indemnity for such expenses to which the Delaware Court of Chancery
or other court shall deem proper.
7(d) Any indemnification under Section (b) and (c) of this Article 7
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he had met the
applicable standard of conduct set forth in the Sections (b) and (c) of this
Article 7. Such determination shall be made (i) by the Board of Directors by a
majority vote of a quorum consisting of directors who are not parties to such
action, suit or proceeding, or (ii) if such quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iii) by the stockholders.
7(e) The corporation shall pay in advance expenses incurred by an officer
or director in defending a civil or criminal action, suit or proceeding in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer (i) to cooperate
reasonably with the corporation in the defense of such action, suit or
proceeding and (ii) to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the corporation as authorized in
this Article 7.
7(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article 7 shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person. The obligation of the corporation
to indemnify and to advance expenses to any director, officer, employee or agent
of the corporation pursuant to the
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provisions of this Article 7 shall irrevocably accrue as of the time of the acts
of the director, officer, employee or agent which give rise to action, suit or
proceeding for which indemnification is sought.
7(g) The rights of indemnification provided by this Article 7 shall not be
exclusive of any other rights to which any person may be entitled under any law,
agreement, vote of disinterested directors or otherwise."
FIFTH: That the executed agreement of merger is on file at the principal
place of business of the surviving corporation. The address of the principal
place of business of the surviving corporation is 900 Upton, Toledo, Ohio 43607.
SIXTH: That a copy of the Plan and Agreement of Merger will be furnished
by the surviving corporation, on request and without cost to any stockholder of
any constituent corporation.
SEVENTH: This Certificate of Merger shall be effective on July 24, 1989.
Dated: July 24, 1989
------------------
CHAMPION SPARK PLUG COMPANY
By: /s/ C. Baker Cunningham
---------------------------
C. Baker Cunningham
President
ATTEST:
By: /s/ Diane K. Schumacher
-----------------------------------
Diane K. Schumacher, Secretary
4
<PAGE>
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
SPM INC.
INTO
CHAMPION SPARK PLUG COMPANY
* * * * * *
Champion Spark Plug Company, a corporation organized and existing under the
laws of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That this corporation was incorporated on the 5th day of
December, 1938, pursuant to the General Corporation Law of the State of
Delaware.
SECOND: That this corporation owns all outstanding shares of capital
stock of SPM Inc., a corporation incorporated on the 28th day of April, 1986,
pursuant to the General Corporation Law of the State of Delaware.
THIRD: That this Corporation, by the following resolutions of its Board
of Directors, duly adopted by the Unanimous Written Consent of its members,
dated as of August 12, 1988, and filed with the minutes of the Board, determined
to merge into itself said SPM Inc.:
RESOLVED, that this Corporation merger into itself SPM Inc., a
Delaware corporation wholly-owned by this Corporation, and that in
connection therewith this Corporation assume all of the liabilities and
obligations of SPM Inc.
FURTHER RESOLVED, such merger shall be effective at 12:00 A.M. on
September 1, 1988.
FURTHER RESOLVED, that the proper officers of this Corporation be, and
they each hereby are, authorized and directed to make and execute a
Certificate of
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Ownership and Merger setting forth a copy of the resolutions to merge S P M
Inc. with and into this Corporation and to assume its liabilities and
obligations, and the date of adoption thereof, and to cause the same to be
filed with the Secretary of State of Delaware and a certified copy recorded
in the office of the Recorder of Deeds of New Castle County and to do all
such further acts and things, whether within or without the State of
Delaware, which may be necessary appropriate or advisable to effect such
merger.
FIFTH: That the effective time of this Certificate of Ownership and
Merger, and the time at which the merger herein provided shall become effective,
shall be 12:00 A.M. on September 1, 1988.
SIXTH: That anything herein or elsewhere to the contrary notwithstanding
the merger herein provided may be amended or terminated and abandoned by the
Board of Directors of this corporation at any time prior to the date of filing
of this Certificate of Merger with the Secretary of State of Delaware.
IN WITNESS WHEREOF, Champion Spark Plug Company has caused this Certificate
of Ownership and Merger to be signed by Thomas G. Kress, its Vice President, and
attested by John A. Garwood, its Secretary, this 24th day of August, 1988.
CHAMPION SPARK PLUG COMPANY
By: /s/ Thomas G. Kress
----------------------------------
Thomas G. Kress, Vice President
ATTEST:
/s/ John A. Garwood
- ---------------------------
John A. Garwood, Secretary
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CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
CHAMPION SPARK PLUG COMPANY
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
Champion Spark Plug Company, a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors
by the Amended Certificate of Incorporation of the Corporation, the Board at a
meeting duly called and held on December 11, 1987, at which a quorum was present
and acting throughout, adopted the following resolution creating a series of
800,000 shares of Series A Junior Participating Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of its Amended
Certificate of Incorporation, a series of Preferred Stock of this Corporation,
without par value, be and hereby is created, and that the designation and amount
thereof and the voting powers, preferences and relative, participating, optional
and other special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series
----------------------
shall be designated as "Series A Junior Participating Preferred Stock"
(hereinafter called "Series A Preferred Stock"), and the number of shares
constituting such series shall be 800,000.
Section 2. Dividends and Distributions.
---------------------------
(A) Subject to the rights of the holders of any shares of any series
of Preferred Stock (or any similar stock) ranking senior to the Series A
Preferred Stock with respect to dividends, the holders of shares of Series A
Preferred Stock, in preference to the holders of Common Stock with a par value
of 30c per share (the "Common Stock") of the Corporation, and of any other
junior stock, shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose, cumulative
quarterly dividends payable in cash on the first day of March, June, September
and December in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series A Preferred Stock, in an amount per share
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(rounded to the nearest cent), equal to the greater of (a) $5.00 or (b) subject
to the provision for adjustment hereinafter set forth, 100 times the aggregate
per share amount of all cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions, other
than a dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise), declared
on the Common Stock since the immediately preceding Quarterly Dividend Payment
Date or, with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of Series A Preferred Stock.
In the event the Corporation shall at any time after December 11, 1987 (the
"Rights Declaration Date") declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under clause (b) or the preceding sentence shall
be adjusted by multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in share of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date, and the next
subsequent Quarterly Dividend Payment Date, a dividend of $5.00 per share on the
Series A Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series A Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be not more
than 50 days prior to the date fixed for the payment thereof.
2
<PAGE>
Section 3. Liquidated, Dissolution or Winding Up. Upon any voluntary
-------------------------------------
or involuntary liquidation, dissolution or winding up of the Corporation, no
distribution or payment shall be made (a) to the holders of Common Stock or any
other shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock unless,
prior thereto, the holders of shares of Series A Preferred Stock shall have
received $100 per share, plus an amount equal to all accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, provided that the holders of shares of Series A Preferred Stock
shall be entitled to receive an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 100 times the aggregate
amount to be distributed per share to holders of Common Stock, or (b) to the
holders of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except distributions made ratably on the Series A Preferred Stock and all other
such party stock in proportion to the total amounts to which the holders of all
such shares are entitled upon such liquidation, dissolution or winding up. In
the event the Corporation shall at any time after the Rights Declaration Date
declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the aggregate amount to which holders of
shares of Series A Preferred Stock were entitled immediately prior to such event
under the proviso in clause (a) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 4. Consolidation, Merger, etc. In case the Corporation shall
--------------------------
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series A Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time after the Rights Declaration Date
declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Series A
Preferred Stock shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
Section 5. No Redemption. The shares of Series A Preferred Stock shall
-------------
not be redeemable.
3
<PAGE>
Section 6. Fractional Shares. The Corporation may issue fractions
-----------------
and certificates representing fractions of a share of Series A Preferred Stock
in integral multiples of one one-hundredths of a share of Series A Preferred
Stock, or in lieu thereof, at the election of the Board of Directors of the
Corporation at the time of the first issue of any shares of Series A Preferred
Stock, evidence such fractions by depositary receipts, pursuant to an
appropriate agreement between the Corporation and a depositary selected by it,
provided that such agreement shall provide that the holders of such depositary
receipts shall have all the rights, privileges and preferences of Series A
Preferred Stock. In the event that fractional shares of Series A Preferred
Stock are issued, the holders thereof shall have all the rights provided herein
for the holders of full shares of Series A Preferred Stock in the proportion
which such fraction bears to a full share.
Section 7. Voting Rights. The holders of shares of Series A
-------------
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the stockholders of the Corporation.
In the event the Corporation shall at any time after the Rights Declaration Date
declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the number of votes per share
to which holders of shares of Series A Preferred Stock were entitled immediately
prior to such event shall be adjusted by multiplying such number by a fraction,
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Preferred Stock and the holders of shares of Common Stock
shall vote together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Preferred Stock
shall be in arrears in an amount equal to six (6) quarterly dividends thereon,
the occurrence of such contingency shall mark the beginning of a period (herein
called a "default period") which shall extend until such time when all accrued
and unpaid dividends for all previous quarterly dividend periods and for the
current quarterly dividend period on all shares of Series A Preferred Stock then
outstanding shall have been declared and paid or set apart for payment. During
each default period, all holders of Preferred Stock (including holders of the
Series A Preferred Stock) with dividends in arrears in an amount equal to six
(6) quarterly dividends thereon, voting as a class, irrespective of series,
shall have the right to elect two (2) Directors.
(ii) During any default period, such voting right of the
holders of Series A Preferred Stock may be exercised initially at a special
meeting called pursuant to subparagraph (iii)
4
<PAGE>
of this Section 3(C) or at any annual meeting of stockholders, and thereafter at
annual meetings of stockholders, provided that neither such voting right nor the
right of the holders of any other series of Preferred Stock, if any, to
increase, in certain cases, the authorized number of Directors shall be
exercised unless the holders of ten percent (10%) in number of shares of
Preferred Stock outstanding shall be present in person or by proxy. The absence
of a quorum of the holders of Common Stock shall not affect the exercise by the
holders of Preferred Stock of such voting right. At any meeting at which
Preferred Stock shall exercise such voting right initially during an existing
default period, they shall have the right, voting as a class, to elect Directors
to fill such vacancies, if any, in the Board of Directors as may then exist up
to two (2) Directors or, if such right is exercised at an annual meeting, to
elect two (2) Directors. If the number which may be so elected at any special
meeting does not amount to the required number, the holders of the Preferred
Stock shall have the right to make such increase in the number of Directors as
shall be necessary to permit the election by them of the required number. After
the holders of the Preferred Stock shall have exercised their right to elect
Directors in any default period and during the continuance of such period, the
number of Directors shall not be increased or decreased except by vote of the
holders of Preferred Stock as herein provided or pursuant to the rights of any
equity securities ranking senior to or pari passu with the Series A Preferred
---- -----
Stock.
(iii) Unless the holders of Preferred Stock shall, during an
existing default period, have previously exercised their right to elect
Directors, the Board of Directors may order, or any stockholder or stockholders
owning in the aggregate not less than ten percent (10%) of the total number of
shares of Preferred Stock outstanding, irrespective of series, may request, the
calling of a special meeting of the holders of Preferred Stock, which meeting
shall thereupon be called by the President, a Vice-President or the Secretary of
the Corporation. Notice of such meeting and of any annual meeting at which
holders of Preferred Stock are entitled to vote pursuant to this paragraph (C)
(iii) shall be given to each holder of record of Preferred Stock by mailing a
copy of such notice to him at his last address as the same appears on the books
of the Corporation. Such meeting shall be called for a time not earlier than 20
days and not later than 60 days after such order or request or in default of the
calling of such meeting within 60 days after such order or request, such meeting
may be called on similar notice by any stockholder or stockholders owning in the
aggregate not less than ten percent (10%) of the total number of shares of
Preferred Stock outstanding. Notwithstanding the provisions of this paragraph
(C)(iii), no such special meeting shall be called during the period within 60
days immediately preceding the date fixed for the next annual meeting of the
stockholders.
(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Corporation if applicable, shall continue to be
entitled to elect the whole number of Directors until the holders of Preferred
Stock shall have exercised their right to elect two (2) Directors voting as a
class, after the exercise of which right (x) the Directors so elected by the
holders of Preferred Stock shall continue in office until their successors shall
have been elected by such holders or until the expiration of the default period,
and (y) any vacancy in the Board of Directors may (except as provided in
paragraph (C)(ii) of this Section 7) be filled by vote of a majority of the
remaining Directors theretofore elected by the holders of the class of stock
which elected the Director whose office shall have become vacant. References in
this paragraph (C) to Directors elected by the
5
<PAGE>
holders of a particular class of stock shall include Directors elected by such
Directors to fill vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x)
the right of the holders of Preferred Stock as a class to elect Directors shall
cease, (y) the term of any Directors elected by the holders of Preferred Stock
as a class shall terminate, and (z) the number of Directors shall be such number
as may be provided for in the Certificate of Incorporation or By-Laws
irrespective of any increase made pursuant to the provisions of paragraph
(C)(ii) of this Section 7 (such number being subject, however, to change
thereafter in any manner provided by law or in the Certificate of Incorporation
or By-Laws). Any vacancies in the Board of Directors effected by the provisions
of clauses (y) and (z) in the preceding sentence may be filled by a majority of
the remaining Directors.
(D) Except as set forth herein, or as required by law, holders of
Series A Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for taking any corporate action.
Section 8. Certain Restrictions.
--------------------
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Sock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except dividends paid ratably on the Series A Preferred Stock and all such
parity stock on which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire share of any
such junior stock in exchange for share of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or winding up)
to the Series A Preferred Stock; or
6
<PAGE>
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock ranking on a parity
with the Series A Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board of Directors) to
all holders of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 8 purchase or otherwise acquire such shares at such time and in
such manner.
Section 9. Reacquired Shares. Any shares of Series A Preferred
-----------------
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new series of
Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
Section 10. Ranking. The Series A Preferred Stock shall rank
-------
junior to all other series of the Corporation's Preferred Stock as to the
payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise.
Section 11. Amendment. The Certificate of Incorporation of the
---------
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of a
majority or more of the outstanding shares of Series A Preferred Stock, voting
separately as a class.
IN WITNESS WHEREOF, this Certificate of Designations is executed on
behalf of the Corporation by its Vice President and Chief Financial Officer and
attested by its Secretary this 4th day of January, 1988.
/s/ Thomas G. Kress
-----------------------------------
Thomas G. Kress
Vice President and
Chief Financial Officer
Attest:
/s/ John A. Garwood
- -------------------
John A. Garwood
Secretary
7
<PAGE>
CERTIFICATE OF AMENDMENT
------------------------
OF
--
CERTIFICATE OF INCORPORATION
----------------------------
OF
--
CHAMPION SPARK PLUG COMPANY
---------------------------
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware.
Champion Spark Plug Company (hereinafter called the "corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, does hereby certify:
FIRST: That the Board of Directors of the corporation at a meeting
duly held adopted the resolutions proposing and declaring advisable the
following amendment to the Certificate of Incorporation of the corporation, as
heretofore amended:
RESOLVED, that in the judgment of this Board it is
advisable that ARTICLE FOURTEENTH of the Certificate of
Incorporation of this corporation be amended to read as
follows:
FOURTEENTH:
(a) Any person who was or is a director
of the corporation shall not be personally
liable to the corporation 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 corporation or its
stockholders, (ii) for acts or omissions not
in good faith or which involve intentional
misconduct or a knowing violating of law,
(iii) under Section 174 of the Delaware
General Corporation Law, or (iv) for any
transaction from which the director derived
an improper personal benefit. This Section
(a) of Article Fourteenth shall not eliminate
or limit the liability of a director any act
or omission occurring prior to the adoption
of this Article Fourteenth.
1
<PAGE>
(b) The corporation shall indemnify any
person who was or is a party or is threatened
to be made a party to any threatened, pending
or completed action, suit or proceeding,
whether civil, criminal, administrative or
investigative (other than an action by or in
the right of the corporation) by reason of
the fact that he is or was a director,
officer, employee or agent of the
corporation, or is or was serving at the
request of the corporation as a director,
officer, employee or agent of another
corporation, partnership, joint venture,
trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines
and amounts paid in settlement actually and
reasonably incurred by him in connection with
such action, suit or proceeding if he acted
in good faith and in a manner he reasonably
believed to be in or not opposed to the best
interests of the corporation, and, with
respect to any criminal action or
proceedings, had no reasonable cause to
believe his conduct was unlawful. The
termination of any action, suit or proceeding
by judgment, order, settlement, conviction or
upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a
presumption that the person did not act in
good faith and in a manner which he
reasonably believed to be in or not opposed
to the best interests of the corporation,
and, with respect to any criminal action or
proceeding, had reasonable cause to believe
that his conduct was unlawful.
(c) The corporation shall indemnify any
person who was or is a party or is threatened
to be made a party to any threatened, pending
or completed action or suit by or in the
right of a corporation to procure a judgment
in its favor by reason of the fact that he is
or was an officer, director, employee or
agent of the corporation, or is or was
serving at the request of the corporation as
a director, officer, employee or agent of the
another corporation, partnership, joint
venture, trust or other enterprise against
expenses (including attorneys' fees) actually
and reasonably incurred by him in connection
with the defense or settlement of such action
or suit if he acted in good faith and in a
manner he reasonably believed
2
<PAGE>
to be in or not opposed to the best interests
of the corporation and except that no
indemnification shall be made in respect of
any claim, issue or matter as to which such
person shall have been adjudged to be liable
to the corporation unless and only to the
extent that the Delaware Court of Chancery or
the court in which such action or suit was
brought shall determine upon application
that, despite the adjudication of liability
but in view of all the circumstances of the
case, such person is fairly and reasonably
entitled to indemnity for such expenses to
which the Delaware Court of Chancery or other
court shall deem proper.
(d) Any indemnification under Sections
(b) and (c) of this Article Fourteenth
(unless ordered by a court) shall be made by
the corporation only as authorized in
specific case upon a determination that
indemnification of the director, officer,
employee or agent is proper in the
circumstances because he has met the
applicable standard of conduct set forth in
Sections (b) and (c) of this Article
Fourteenth. Such determination shall be made
(i) by the Board of Directors by a majority
vote of a quorum consisting of directors who
are not parties to such action, suit or
proceeding, or (ii) if such quorum is not
obtainable, or, even if obtainable a quorum
of disinterested directors or directs, by
independent legal counsel in a written
opinion, or (iii) by the stockholders.
(e) The corporation shall pay in
advance expenses incurred by an officer or
director in defending a civil or criminal
action, suit or proceeding in advance of the
final disposition of such action, suit or
proceeding upon receipt of an undertaking by
or on behalf of such director or officer (i)
to cooperate reasonably with the corporation
in the defense of such action, suit or
proceeding and (ii) to repay such amount if
it shall ultimately be determined that he is
not entitled to be indemnified by the
corporation as authorized in this Article
Fourteenth.
(f) The indemnification and advancement
of expenses provided by, or granted pursuant
to, this
3
<PAGE>
Article Fourteenth shall, unless otherwise
provided when authorized or ratified,
continue as to a person who has ceased to be
a director, officer, employee or agent and
shall inure to the benefit of the heirs,
executors and administrators of such person.
The obligation of the corporation to
indemnify and to advance expenses to any
director, officer, employee or agent of the
corporation pursuant to the provisions of
this Article Fourteenth shall irrevocably
accrue as of the time of the acts of the
director, officer, employee or agent which
give rise to action, suit or proceeding for
which indemnification is sought.
(g) The rights of indemnification
provided by this Article Fourteenth shall not
be exclusive of any other rights to which any
person may be entitled under any law,
agreement, vote of disinterested directors or
otherwise.
SECOND: That the amendment hereinbefore set forth in this
Certificate was duly adopted in accordance with the provisions of Section 242 of
the General Corporation Law of the State of Delaware.
THIRD: That the capital of the corporation will not be reduced
under or by reason of the amendment hereinbefore set forth in this Certificate.
4
<PAGE>
IN WITNESS WHEREOF, Champion Spark Plug Company has caused its
corporate seal to be hereunto affixed and this Certificate to be signed by its
President and its Secretary this 23rd day of June, 1987.
CHAMPION SPARK PLUG COMPANY
By /s/ O. Lee Henry
--------------------------
O. Lee Henry, President
ATTEST:
SEAL
/s/ J.A. Garwood
----------------------------
J. A. Garwood, Secretary
5
<PAGE>
STATE OF OHIO )
) ss:
COUNTY OF LUCAS )
Be it remembered that on this 23rd day of June, 1987 personally came
before me Dorothy Schimmel, a Notary Public in and for the county and state
aforesaid, O. Lee Henry and J. A. Garwood, President and Secretary of a
corporation in the State of Delaware, the corporation described in and which
executed the foregoing Certificate, known to me personally to be such and they,
the said O. Lee Henry and J. A. Garwood as such President and Secretary duly
executed the said Certificate before me and acknowledged the said Certificate to
be their act and deed and act and deed of said corporation and the facts stated
therein are true; that the signatures of said President and Secretary of the
said corporation to said foregoing Certificate are in the handwriting of the
said President and Secretary of said corporation, respectfully, and that the
seal affixed to said Certificate is the common or corporation seal of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of the office
the day and year aforesaid.
/s/ Dorothy Schimmel
--------------------------------
Notary Public
6
<PAGE>
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
CHAMPION SPARK PLUG COMPANY
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware.
Champion Spark Plug Company (hereinafter called the "corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, does hereby certify:
FIRST: That the Board of Directors of the corporation at a meeting
duly held adopted resolutions proposing and declaring advisable the following
amendment to the Certificate of Incorporation of the corporation, as heretofore
amended:
RESOLVED, that in the judgment of this Board it is
advisable that ARTICLE FOURTH of the Certificate of
Incorporation of this corporation be amended to read as
follows:
FOURTH. The total number of shares of
------
all classes of stock that the Company shall
have authority to issue is eighty-five
million (85,000,000) shares which are divided
into two classes as follows:
Five million (5,000,000) shares of
preferred stock without par value.
Eighty million (80,000,000) shares of
Common Stock with a par value of 30c per
share.
The Board of Directors is authorized to
issue the shares of the preferred stock in
one or more series at such time or times as
the Board of Directors by resolution may
determine. The Board of
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<PAGE>
Directors is further authorized to issue such
preferred shares with such voting powers,
designations, preferences and relative,
participating, optional or other special
rights, and qualifications, limitations or
restrictions thereof as shall be provided in
the resolution of the Board of Directors
providing for the issuance of such preferred
stock.
RESOLVED, that in the judgment of this Board it is
advisable that the Certificate of Incorporation of this
corporation be amended to include an ARTICLE FIFTEENTH to
read as follows:
FIFTEENTH. In addition to the
---------
requirements of applicable state law, and
other provisions of these Articles:
(a) The affirmative vote of the holders
of at least two-thirds of the voting power of
the outstanding shares of voting Common Stock
not Beneficially Owned by Controlling Persons
shall be required for the approval of a
Business Combination unless:
(1) The Business Combination will
result in an involuntary sale, redemption,
cancellation or other termination of
ownership of all shares of voting Common
Stock of this Corporation owned by
stockholders who do not vote in favor of the
Business Combination and the cash or fair
value of other readily marketable
consideration to be received by such
stockholders for such shares shall at least
be equal to the Minimum Price Per Share, and
a proxy statement responsive to the
requirements of the Securities Exchange Act
of 1934 shall be mailed to the stockholders
of this Corporation for the purpose of
soliciting stockholder approval of the
Business Combination; or
(2) The Board of Directors of this
Corporation shall by resolution adopted at a
meeting of the Board of Directors by the
affirmative vote of at least two-thirds of
the Continuing Directors then in office have
approved the Business Combination as being in
the best interest of the Corporation.
(b) Solely for the purpose of this Article,
the following definitions shall apply:
2
<PAGE>
(1) "Affiliate" shall mean any Person that directly, or
indirectly through one or more intermediaries, controls, or is
controlled by, or is under control with another Person.
(2) "Associate" shall mean: (i) any corporation or
organization of which a Person is an officer or partner or is,
directly or indirectly, the Beneficial Owner of five percent (5%)
or more of any class of equity securities, (ii) any trust or
other estate in which a Person serves as trustee or in a similar
fiduciary capacity; or (iii) the immediate family of a Person,
including, without limitation, a spouse, parents, children (even
if of legal age and living independently), siblings, fathers and
mothers-in-law, sons, and daughters-in-law, and brothers and
sisters-in-law.
(3) "Beneficial Ownership" shall include without
limitation: (i) all shares directly or indirectly owned by a
Person, by an Affiliate of such Person or by an Associate of such
Person or such Affiliate; (ii) all shares which such Person,
Affiliate or Associate has the right to acquire (a) through the
exercise of any option, warrant or right (whether or not
currently exercisable), (b) through the conversion of a security,
(c) pursuant to the power to revoke a trust, discretionary
account or similar arrangement, or (d) pursuant to the automatic
termination of a trust, discretionary account or similar
arrangement; and (iii) all shares as to which such Person,
Affiliate or Associate directly or indirectly, through any
contract, arrangement, understanding, relationship or otherwise
(including without limitation any written or unwritten agreements
to act in concert but specifically excluding any participation
agreement, arrangement, understanding or relationship between or
among any two or more commercial banks made or established in
connection with and furtherance of a bona fide lending
arrangement with this Corporation and/or one or more
subsidiaries) has or shares voting power (which includes the
power to vote or to direct the voting of such shares) or
investment power (which includes the
3
<PAGE>
power to dispose or to direct the disposition of such shares) or
both.
(4) "Business Combination" shall mean: (i) any merger of
this Corporation with or into a Controlling Person or Affiliate
of a Controlling Person or Associate of such Controlling Person
or Affiliate; (ii) any sale, lease, exchange, transfer or other
disposition, including without limitation a mortgage or other
security device, of all or any Substantial Part of the assets of
this Corporation, including without limitation any voting
securities of a Subsidiary, or of a Subsidiary, to or with a
Controlling Person or Affiliate of a Controlling Person or
Associate of such Controlling Person or Affiliate; (iii) any
merger into this Corporation, or into a Subsidiary, of a
Controlling Person or an Affiliate of a Controlling Person or an
Associate of such Controlling Person or Affiliate; (iv) any sale,
lease, exchange, transfer or other disposition to this
Corporation or a Subsidiary of all or any part of the assets of a
Controlling Person or Affiliate of a Controlling Person or
Associate of such Controlling Person or Affiliate but not
including any disposition of assets which, if included with any
other dispositions consummated during such fiscal year of this
Corporation by the same Controlling Person, Affiliates thereof,
and Associates of such Controlling Person or Affiliates, would
not result in dispositions during such year by all such Persons
of assets having an aggregate fair market value (determined at
the time of disposition of respective assets) in excess of one
percent (1%) of the total consolidated assets of this Corporation
as shown on its certified balance sheet as of the end of the
fiscal year proceeding the proposed disposition, provided,
however, that in no event shall any disposition of assets be
excepted from stockholder approval by reason of the preceding
exclusion if such disposition, when included with all of the
dispositions consummated during the same, and immediately
preceding two fiscal years of this Corporation by the same
Controlling Person, Affiliates thereof and Associates of such
Controlling Person or Affiliates, would result in dispositions by
all such Persons of
4
<PAGE>
assets having an aggregate fair market value (determined at the
time of disposition of the respective assets) in excess of two
percent (2%) of the total consolidated assets of this Corporation
as shown on its certified balance sheet as of the end of the
fiscal year preceding the proposed disposition; (v) any
reclassification of voting Common Stock of this Corporation, or
any recapitalization involving voting Common Stock of this
Corporation, consummated within three years after a Controlling
Person becomes a Controlling Person; and (vi) any agreement,
contract or other arrangement providing for any of the
transactions described in this definition of Business
Combination, but, notwithstanding anything to the contrary
herein, Business Combination shall not include dissolution of
this Corporation, or any Section 253 Merger, or any transaction
involving a Controlling Person or Affiliate of a Controlling
Person or Associate of such Controlling Person or Affiliate which
is to be consummated or become effective after such Controlling
Person has been a Controlling Person for at least three years.
(5) "Control" shall mean the possession, directly or
indirectly, and the power to direct or cause the direction of the
management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
(6) "Controlling Person" shall mean any Person who
Beneficially Owns a number of voting shares of this Corporation,
whether or not such number includes shares not then issued, which
exceeds a number equal to fifteen percent (15%) of the voting
power of the shares of this Corporation entitled to vote, but in
no event at any time include any Person who, on December 31,
1983, Beneficially Owned a number of voting shares of this
Corporation which on such date exceeded fifteen percent (15%) of
the voting power of the share of this Corporation on such date.
(7) "Minimum Price Per Share" shall mean the greater of (i)
the highest gross per share price paid
5
<PAGE>
or agreed to be paid to acquire any shares of voting Common Stock
of this Corporation Beneficially Owned by a Controlling Person,
provided such payment or agreement to make payment of those made
within three years immediately prior to the record date set to
determine the stockholders entitled to vote on the Business
Combination in question, or, in the case of a Section 253 Merger,
three years immediately prior to the effective date of such
Section 253 Merger, or (ii) the highest per share asked public
market price (in the event the shares are not listed on a
national securities exchange) or the highest per share closing
public market price (in the event the shares are listed on a
national securities exchange) for such shares during such three-
year period. The calculation of the Minimum Price Per Share shall
require appropriate adjustment for changes, including, without
limitation, stock splits, stock dividends, reverse stock splits
and stock distributions.
(8) "Person" shall mean an individual, a corporation, a
partnership, an association, a joint stock company, a business
trust, an unincorporated organization or any other entity or
group.
(9) "Section 253 Merger" shall mean any merger of this
Corporation into another corporation pursuant to Delaware
Corporation Law, Section 253, as amended from time to time, or
any successor or replacement statute (collectively Section 253),
but only if Section 253 does not give voting rights to the
stockholders of this Corporation with respect to the merger. If
voting rights are required by Section 253, or in connection
therewith, a merger under such section shall not be a Section 253
Merger for purposes of this Article FIFTEENTH.
(10) "Securities Exchange Act of 1934" shall mean the
Securities Exchange Act of 1934, as amended from time to time as
well as any successor or replacement statute.
6
<PAGE>
(11) "Subsidiary" shall mean any Corporation twenty percent
(20%) or more of whose outstanding securities representing the
right to vote for the election of directors is Beneficially Owned
by this Corporation and/or one or more Subsidiaries.
(12) "Substantial Part" shall mean more than ten percent
(10%) of the total assets of the Corporation in question, as
shown on its certified balance sheet as of the end of the most
recent fiscal year and prior to the time that a determination is
being made.
(13) "Continuing Director" shall mean Director who was a
member of the Board of Directors of the Corporation immediately
prior to the time that the Controlling Person involved in a
Business Combination became a Controlling Person.
(c) A "Controlling Person" shall be subject to all fiduciary and
other standards of conduct and obligations imposed by applicable state
law and shall not be considered to have satisfied such standards of
conduct and obligations unless such Controlling Person shall, in the
event of a Section 253 Merger which occurs before the Controlling
Person has been a Controlling Person for three years, pay or cause to
be paid for each share of voting Common Stock of this Corporation, as
to which share ownership is being sold, redeemed, canceled or
otherwise terminated in a Section 253 Merger, cash or readily
marketable consideration having a fair value at least equal to the
Minimum Price Per Share.
The vote required for approval of any amendment to, or repeal of,
any portion of this Article FIFTEENTH shall be the affirmative vote of
the holders of at least two-thirds of the voting power of the
outstanding shares of voting Common Stock not Beneficially Owned by
the Controlling Persons.
SECOND: That the amendment hereinbefore set forth in this
Certificate was duly adopted in accordance with the provisions of Section 242 of
the General Corporation Law of the State of Delaware.
7
<PAGE>
THIRD: That the capital of the corporation will not be reduced
under or by reason of the amendment hereinbefore set forth in this Certificate.
IN WITNESS WHEREOF, Champion Spark Plug Company has caused its
corporate seal to be hereunto affixed and the this Certificate to be signed by
its president and its secretary this 27th day of April, 1984.
CHAMPION SPARK PLUG COMPANY
By /s/ R.A. Stranahan, Jr.
------------------------------
R.A. Stranahan, Jr., President
and Chairman of the Board
SEAL
Attest:
/s/ J.A. Garwood
- -----------------------
J.A. Garwood, Secretary
8
<PAGE>
STATE OF OHIO )
) ss:
COUNTY OF LUCAS )
Be it remembered that on this 27th day of April, 1984 personally came
before me Dorothy Schimmel, a Notary Public in and for the county and state
aforesaid, R. A. Stranahan, Jr., and J.A. Garwood, Chairman of the Board and
President and Secretary of a corporation of the State of Delaware, the
corporation described in and which executed the foregoing Certificate, known to
me personally to be such and they, the said R. A. Stranahan, Jr., and J. A.
Garwood as such Chairman of the Board and President and Secretary, duly executed
the said Certificate before me and acknowledged the said Certificate to be their
act and deed and the act and deed of said corporation and the facts stated
therein are true; that the signatures of the said Chairman of the Board and
President and Secretary of the said corporation to said foregoing Certificate
are in the handwriting of the said Chairman of the Board and President and
Secretary of said corporation respectfully, and that the seal affixed to said
Certificate is the common or corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the
day and year aforesaid.
/s/ Dorothy Schimmel
---------------------
Notary Public
9
<PAGE>
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
MORENCI RUBBER PRODUCTS, INC.
INTO
CHAMPION SPARK PLUG COMPANY
* * * * * * * *
Champion Spark Plug Company, a corporation organized and existing
under the laws of Delaware,
DOES HEREBY CERTIFY:
FIRST: That this corporation was incorporated on the 12th day of
September, 1916, pursuant to the General Corporation Law of the State of
Delaware.
SECOND: That this corporation owns all of the outstanding shares of
the stock of Morenci Rubber Products, Inc., a corporation incorporated on the
23d day of April, 1945, pursuant to the Business Corporation Act of the State of
Michigan.
THIRD: That this corporation, by the following resolutions of its
Board of Directors, duly adopted at a meeting held on the 27th day of April,
1983, determined to and did merge into itself said Morenci Rubber Products,
Inc.:
RESOLVED, that Champion Spark Plug Company merge, and it hereby does
merge into itself said Morenci Rubber Products, Inc., and assumes all of its
obligations; and
FURTHER RESOLVED, that the merger shall be effective upon the date of
filing with the Secretary of State of Delaware.
<PAGE>
-2-
FURTHER RESOLVED, that the proper officers of this corporation be and
they hereby are directed to make and execute a Certificate of Ownership and
Merger setting forth a copy of the resolutions to merge said Morenci Rubber
Products, Inc. and assume its liabilities and obligations, and the date of
adoption thereof, and to cause the same to be filed with the Secretary of State
and a certified copy recorded in the office of the Recorder of Deeds of New
Castle County and to do all acts and things whatsoever, whether within or
without the State of Delaware, which may be in anywise necessary or proper to
effect said merger.
IN WITNESS WHEREOF, said Champion Spark Plug Company has caused this
certificate to be signed by Robert A. Stranahan, Jr., its President, and
attested by Richard H. Crook, Jr., its Secretary, this 27th day of April, 1983.
CHAMPION SPARK PLUG COMPANY
By /s/ Robert A. Stranahan, Jr.
----------------------------
President
ATTEST:
By /s/ Richard H. Crook, Jr.
--------------------------
Secretary
<PAGE>
-3-
STATE OF OHIO )
) ss.
COUNTY OF LUCAS )
Be it remembered that on this 27th day of April, 1983, personally came
before me, a Notary Public in and for the county and state aforesaid, Robert A.
Stranahan, Jr., President of Champion Spark Plug Company a corporation of the
State of Delaware, the corporation described in and which executed the foregoing
certificate, known to me personally to be such, and he as such President, duly
executed the said certificate before me and acknowledged the said certificate to
be his act and deed and the act and deed of said corporation and the facts
stated therein are true; that the signature of the President of said corporation
to the foregoing certificate is in the handwriting of the said President of said
corporation, and the seal affixed to said certificate, and attested by the
Secretary of said corporation, is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the
day and year aforesaid.
Notary Public
JOHN A. GARWOOD, Attorney at Law
NOTARY PUBLIC -- STATE of OHIO
My Commission Has No Expiration Date.
Section 14703 R.C.
<PAGE>
CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION
of
CHAMPION SPARK PLUG COMPANY
Pursuant to Section 242 of the General Corporation
Law of the State of Delaware
________________
CHAMPION SPARK PLUG COMPANY (hereinafter called the "corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the corporation at a meeting
duly held adopted resolutions proposing and declaring advisable the following
amendment to the Certificate of Incorporation of the corporation, as heretofore
amended:
RESOLVED, that in the judgment of this Board it is advisable that
Article FOURTH of the Certificate of Incorporation of this corporation
be amended to read as follows:
"FOURTH. The total number of shares of stock which the
Corporation shall have authority to issue is forty million
(40,000,000) shares of common stock with a par value of 30c per share.
The aggregate number of shares of common stock with a par value
of 83 1/3c per share issued and outstanding on the effective date of
this amendment shall be reclassified and changed into three times such
number of shares of common stock with a par value of 30c per share so
that each such outstanding share of common stock with a par value of
83 1/3c per share shall, on such date, be changed into and become
three (3) shares of common stock with a par value of 30c per share."
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, an annual meeting of stockholders of the corporation was duly called
and held upon notice in accordance with
<PAGE>
-2-
Section 222 of the General Corporation Law of the State of Delaware at which
meeting the necessary number of shares as required by statute were voted in
favor of the amendment.
THIRD: That the said amendment was duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of the corporation will not be reduced under
or by reason of said amendment.
IN WITNESS WHEREOF, Champion Spark Plug Company has caused its
corporate seal to be hereunto affixed and this Certificate to be signed by its
President and its Secretary, this 23rd day of April, 1973.
CHAMPION SPARK PLUG COMPANY
(SEAL) By /s/ Robert A. Stranahan, Jr.
-------------------------------
R.A. Stranahan, Jr., President
Attest:
R.H. Crook, Jr.
--------------------------
R.H. Crook, Jr. Secretary
<PAGE>
AGREEMENT OF MERGER
This Agreement of Merger (hereinafter called the "Agreement") made
this 15th day of August, 1969, between Champion Spark Plug Company, a Delaware
corporation (hereinafter called "Champion" or the "Surviving Corporation") and
The DeVilbiss Company, an Ohio corporation (hereinafter called "DeVilbiss").
Said corporation shall also collectively be referred to herein as the
"Constituent Corporations".
WITNESSETH:
WHEREAS, Champion is authorized to have outstanding 20,000,000 shares
of common stock, 83 1/3c par value, of which 12,235,744 shares are issued and
outstanding and 93,976 shares are reserved for issuance pursuant to Champion's
1961 Key Employee Stock Option Plan, as amended;
WHEREAS, DeVilbiss is authorized to have outstanding 4,000,000 common
shares with a par value of $10 per share, of which 1,540,925 are now issued and
outstanding and 6,075 are held in the treasury;
WHEREAS, the Board of Directors of Champion and DeVilbiss,
respectively, have approved this agreement and deem it advisable that DeVilbiss
be merged into Champion in accordance with the statutes of the States of
Delaware and Ohio upon the terms and subject to the conditions set forth in this
agreement.
NOW THEREFORE, Champion and DeVilbiss hereby agree as follows:
<PAGE>
-2-
SECTION 1. THE MERGER
1.1 Surviving Corporation. Upon the Effective Date (as defined in
---------------------
Section 5.1), DeVilbiss shall be merged into Champion which shall be the
surviving corporation of the merger and the separate existence of DeVilbiss
shall cease. The Surviving Corporation shall continue to be governed by the
laws of the State of Delaware and shall have its principal office in the State
of Delaware at 100 West Tenth Street, City of Wilmington, New Castle County.
The name of its registered agent at such address is The Corporation Trust
Company.
1.2 Purposes of the Surviving Corporation. The nature of the
-------------------------------------
business, or objects or purposes to be transacted, promoted or carried on are as
follows:
(1) To manufacture, design, develop, buy or otherwise acquire,
sell and deal in spark plugs, electrical ignition devices, and any and
all kinds of electrical equipment, machinery, parts and appliances for
motor vehicles, motors and engines and articles and supplies used or
useful in connection with any of the foregoing.
(2) To manufacture, design, develop, buy or otherwise acquire,
sell, transfer, exchange or otherwise dispose of, and to invest, trade
and deal in or with goods, wares and merchandise and personal property
of every kind and description.
(3) To purchase, hold, own, sell, exchange, transfer, pledge, or
otherwise trade or deal in or dispose of stocks, bonds, mortgages,
debentures, evidences of indebtedness and securities of every kind and
description of any corporation, trust, business organization,
government or subdivision thereof, domestic or foreign, and to
exercise in respect thereto all rights and privileges of individual
ownership, including the right to receive the income therefrom and to
vote thereon and to guarantee the same or become surety in respect
thereto.
<PAGE>
-3-
(4) To undertake and carry out the financing, financial
adjustment, reorganization, consolidation, merger and liquidation of
any corporation or of any undertaking, business, affairs or interests
and to transact any business necessary or convenient relating or
incident thereto.
(5) To enter into, assist, promote, conduct, perform or
participate in, every kind of commercial, mercantile or industrial
enterprise, business, or work, contract, undertaking, venture or
operation.
(6) To purchase or otherwise acquire, take over, hold, sell,
liquidate, or otherwise dispose of, the real estate, plants,
equipment, inventory, merchandise, materials and other assets, shares,
good will, rights, franchises, patents, trade-marks and trade names
and other properties of domestic or foreign corporations, firms,
associations, syndicates, individuals, and others; to continue, alter,
extend, or develop their business, assume their liabilities, guarantee
or become surety for the performance of their obligations; reorganize
their capital, and participate in any way in their affairs; to take
over as a going concern and continue, in its own name, any business so
acquired and to pay for any such business or properties in cash,
stocks, bonds, debentures, securities, or obligations of this
corporation, or otherwise.
(7) To apply for, obtain, register, purchase, lease or otherwise
acquire, and to hold, own, use, exercise, develop, operate and
introduce, and to sell, assign, grant licenses in respect of, or
otherwise dispose of, any patents and inventions, improvements and
processes used in connection with or secured under Letters Patent of
the United States or any dependency, colony, or insular possession of
the United States, or of any foreign government, trade-marks and trade
names, and to acquire, use, exercise, or otherwise turn to gain,
licenses in respect of any such patents, inventions, processes and the
like, or any such property rights.
(8) To purchase, hold, re-issue, sell, exchange or otherwise
deal in its own securities, including shares of its capital stock of
any class, as and to the extent now or from time to time permitted by
the laws of the State of Delaware.
(9) To carry on any or all of its operations and business and to
promote its objects within the State of Delaware or elsewhere, without
restrictions as to place or amount.
<PAGE>
-4-
The purposes specified in any clause or paragraph contained herein
shall be deemed to be independent purposes, and shall not be limited or
restricted by reference to or inference from the terms of any other clause or
paragraph contained herein.
1.3 Authorized Shares. The total number of shares of stock which the
-----------------
Surviving Corporation shall have authority to issue is twenty million
(20,000,000) shares of common stock with a par value of 83 1/3c per share.
1.4 Certificate of Incorporation. The Certificate of Incorporation
----------------------------
of Champion as the same is in effect immediately prior to the Effective Date
shall constitute the Certificate of Incorporation of the Surviving Corporation
until it shall thereafter be duly amended.
1.5 By-Laws. The By-Laws of Champion as the same are in effect
-------
immediately prior to the Effective Date shall constitute the By-Laws of the
Surviving Corporation until they shall thereafter be duly amended.
1.6 Effect of Merger. Upon the Effective Date, the effect of the
----------------
merger shall be as provided in the applicable provisions of the laws of the
States of Delaware and Ohio. Without limiting the generality of the foregoing,
and subject thereto, upon the Effective Date: (a) the separate existence of
DeVilbiss shall cease, and the Surviving Corporation shall possess all the
rights, privileges, powers and franchises as well of a public as of a private
nature, and shall be subject to all of the restrictions, disabilities and duties
of DeVilbiss; (b) all and singular, the rights, privileges, powers and
franchises of DeVilbiss, all property, real, personal and mixed, and all debts
due to DeVilbiss on whatever account, as well for stock subscriptions as all
other things in action or belonging to DeVilbiss, shall be vested in the
Surviving Corporation; (c) all property, rights, privileges, powers and
franchises, and all and every other interest shall be thereafter as effectually
the
<PAGE>
-5-
property of the Surviving Corporation as they were of the Constituent
Corporations, and the title to any real estate vested by deed or otherwise in
either of the Constituent Corporations shall not revert or be in any way
impaired and (d) all rights of creditors and all liens upon any property of
either of the Constituent Corporations shall be preserved unimpaired, and all
debts, liabilities and duties of DeVilbiss shall thenceforth attach to the
Surviving Corporation, and may be enforced against it to the same extent as if
said debts, liabilities and duties had been incurred or contracted by it. Any
action or proceeding pending by or against DeVilbiss at the Effective Date may
be prosecuted as if the merger had not taken place, or the Surviving Corporation
may be substituted in its place.
SECTION 2. TERMS OF MERGER
2.1 Exchange Ratio. Upon the Effective Date (a) each common share,
--------------
$10 par value, of DeVilbiss outstanding immediately prior to the Effective Date
shall (except for the 1,319,138 shares of DeVilbiss held by Champion) be
converted into and become, without any action on the part of the holder thereof,
one share of Champion common stock, 83 1/3c par value. The common shares of
DeVilbiss held in its treasury and the common shares of DeVilbiss held by
Champion shall, on such date, be cancelled and shall not be converted into
shares of common stock of Champion and (b) each share of Champion common stock,
83 1/3c par value, outstanding immediately prior to the Effective Date, shall
continue to be one (1) share of common stock of the Surviving Corporation.
2.2 Rights of DeVilbiss Holders. On the Effective Date, the holders
---------------------------
of certificates for DeVilbiss common shares shall cease to have any rights as
shareholders of DeVilbiss (except such rights, if any, as they may have as
dissenting shareholders) and, except as aforesaid, their sole rights shall
pertain to Champion common stock into which their DeVilbiss common shares shall
have been
<PAGE>
-6-
changed by the merger. After the Effective Date, each holder of a certificate
for DeVilbiss common shares, upon surrendering the same duly endorsed to any
transfer agent for Champion common stock, shall be entitled to receive in
exchange therefor a certificate or certificates representing the shares of
Champion common stock into which his DeVilbiss common shares have been changed
by the merger. Pending such surrender and exchange, such holders of a
certificate or certificates for DeVilbiss common shares shall be deemed to
evidence the Champion common stock into which such DeVilbiss common shares have
been changed by the merger.
SECTION 3. DIRECTORS AND OFFICERS OF SURVIVING CORPORATION
3.1 Directors. The names and addresses of the first directors of the
---------
Surviving Corporation at the Effective Date shall be as follows:
Name Address
---- -------
Robert A. Stranahan, Jr. 900 Upton Avenue
Toledo, Ohio 43601
Duane Stranahan 900 Upton Avenue
Toledo, Ohio 43601
Howard B. Speyer 900 Upton Avenue
Toledo, Ohio 43601
Robert W. Vogel 900 Upton Avenue
Toledo, Ohio 43601
William A. Belt 1434 National Bank Building
Toledo, Ohio 43604
Donald M. Dresser 245 Summit Street
Toledo, Ohio 43604
Such persons shall serve until the Surviving Corporation's 1970 annual
meeting of stockholders or until their successors are duly elected and
qualified.
<PAGE>
-7-
3.2 Officers. The names and addresses of the first officers of the
--------
Surviving Corporation at the Effective Date shall be as follows:
Name Title Address
- ---- ----- -------
Robert A. Stranahan, Jr. Chairman of the Board 900 Upton Avenue
and President Toledo, Ohio 43601
Duane Stranahan, Jr. Vice President 900 Upton Avenue
Toledo, Ohio 43601
Robert W. Vogel Vice President and 900 Upton Avenue
Treasurer Toledo, Ohio 43601
Harry F. Davis Vice President - Sales 900 Upton Avenue
Toledo, Ohio 43601
Keith Wilson Vice President - 900 Upton Avenue
Director of International Toledo, Ohio 43601
Operations
Kermit C. Scheettley Vice President - General 900 Upton Avenue
Manager Spark Plug Toledo, Ohio 43601
Manufacturing Operations
Richard C. Teasel Vice President - Research 900 Upton Avenue
and Engineering Toledo, Ohio 43601
Toby A. Hill Secretary 900 Upton Avenue
Toledo, Ohio 43601
Robert J. Bretje, Jr. Controller 900 Upton Avenue
Toledo, Ohio 43601
Richard H. Crook, Jr. Assistant Secretary 900 Upton Avenue
Toledo, Ohio 43601
Charles C. Yeager Assistant Treasurer 900 Upton Avenue
Toledo, Ohio 43601
<PAGE>
-8-
The foregoing officers shall serve as such subject to the pleasure of
the Board of Directors and, unless sooner removed by the Board of Directors,
until the first organization meeting of the Board of Directors following the
Effective Date or until their successors are chosen and qualified.
SECTION 4. ACCOUNTING
4.1 Capital. The capital of the Surviving Corporation at the
-------
Effective Date shall be an amount equal to 83 1/3c for each share of common
stock issued and outstanding on such date.
4.2 Capital Surplus. The capital surplus of the Surviving
---------------
Corporation shall, on the Effective Date, be the sum of the capital surplus of
Champion on said date plus the excess of the fair market value of the Champion
shares issued pursuant to the merger over the par value of the shares so issued.
For this purpose, the fair market value of Champion shares on the Effective Date
is hereby defined as the mean between the high and low sale prices of such
shares on the New York Stock Exchange on said date.
4.3 Earned Surplus. The earned surplus of the Surviving Corporation
--------------
on the Effective Date shall be the same as the earned surplus of Champion on
said date.
SECTION 5. GENERAL
5.1 Effective Date. The merger shall become effective at the time
--------------
when this agreement has been submitted to and approved by the shareholders of
DeVilbiss and has been filed with the Secretary of State of the State of Ohio
and the Secretary of State of the State of Delaware pursuant to the applicable
laws of such States. The time when the last of such filings shall have been
made shall be known, for the purposes of this agreement, as the "Effective
Date".
<PAGE>
-9-
This agreement may be terminated and the merger abandoned at any time
prior to the Effective Date (whether before or after the meeting of the
DeVilbiss shareholders referred to above) by notices in writing from each party
to the other duly authorized by their respective Boards of Trustees.
5.2 Consent to Suit; Dissenting Shareholders. The Surviving
----------------------------------------
Corporation hereby consents that it may be sued and served with process in the
State of Ohio in any proceeding for the enforcement of any obligation of
DeVilbiss and in any proceeding for the enforcement of the rights of a
dissenting shareholder of DeVilbiss against the Surviving Corporation. The
Secretary of State of the State of Ohio is hereby irrevocably appointed as the
agent of the Surviving Corporation to accept service of process in any such
proceeding.
The Surviving Corporation hereby agrees that it will promptly pay to
dissenting shareholders of DeVilbiss the amount, if any, to which they are
entitled under Section 1701.85 of the Ohio Revised Code.
5.3 Transaction of Business in Ohio. The Surviving Corporation
-------------------------------
desires to transact business in the State of Ohio as a foreign corporation and
does hereby:
(a) state that the principal office of the Surviving Corporation
in the State of Ohio is located in Toledo, Lucas County;
(b) appoint Robert W. Vogel, 900 Upton Avenue, Toledo, Lucas
County, Ohio 43601, as statutory agent of the Surviving Corporation in
the State of Ohio;
(c) irrevocably consent (i) that service of any process, notice,
or demand against, to or upon the Surviving Corporation may be served
within the State of Ohio upon such statutory agent so long as the
authority of such agent continues and (ii) to service of process upon
the Secretary of State of the State of Ohio under the circumstances
set forth in Section 1703.19 of the Ohio Revised Code.
<PAGE>
-10-
IN WITNESS WHEREOF, Champion and DeVilbiss have caused this agreement
to be signed by their duly authorized officers and the respective corporate
seals to be affixed and attested to, all as of the day and year first set forth
above.
CHAMPION SPARK PLUG COMPANY CHAMPION SPARK PLUG COMPANY
(Seal)
By /s/ Robert A. Stranahan, Jr.
----------------------------
Attest /s/ Toby A. Hill President
----------------
Secretary
THE DeVILBISS COMPANY THE DeVILBISS COMPANY
(Seal)
TOLEDO, OHIO By /s/ Henry M. Kidd
-----------------
Attest /s/ Frank R. Pitt President
-----------------
Secretary
<PAGE>
SECRETARY'S CERTIFICATE
I, T. A. Hill, Secretary of Champion Spark Plug Company, a corporation
organized and existing under the laws of the State of Delaware, hereby certify,
as such Secretary and under the seal of the said corporation, that the Agreement
of Merger to which this certificate is attached, after having been first duly
signed on behalf of the said corporation and having been signed on behalf of The
DeVilbiss Company, a corporation of the State of Ohio, was duly adopted pursuant
to subsection (F) of section 251 of Title 8 of the Delaware Code of 1953,
without any vote of the stockholders of the surviving corporation and that the
Agreement of Merger does not amend in any respect the Certificate of
Incorporation of the surviving corporation and the authorized unissued shares or
the treasury shares of any class of the surviving corporation, if any, are to be
issued or delivered under the plan of merger do not exceed fifteen per cent
(15%) of the shares of the surviving corporation of the same class outstanding
immediately prior to the effective date of the merger and that the outstanding
shares of the corporation were such as to render subsection (F) of section 251
of Title 8 of the Delaware Code of 1953 applicable and that its Agreement of
Merger was thereby adopted by action of the Board of Directors of said Champion
Spark Plug Company and is the duly adopted agreement and act of the said
organization.
WITNESS my hand and the seal of said Champion Spark Plug Company on
this 15th day of December, 1969.
/s/ T.A. Hill
--------------------------
Secretary
(CORPORATE SEAL)
<PAGE>
-2-
The above Agreement of Merger, having been executed on behalf of each
corporate party thereto, and having been adopted separately by each corporate
party thereto, in accordance with the provisions of the General Corporation Law
of the State of Delaware and the Ohio General Corporation Law of the State of
Ohio, the President of each corporate party thereto does now hereby execute the
said Agreement of Merger and the Secretary of each corporate party thereto does
now hereby attest the said Agreement of Merger under the corporate seals of
their respective corporations, by authority of the directors and stockholders
thereof, as the respective act, deed and agreement of each of said corporations,
on this 15th day of December, 1969.
CHAMPION SPARK PLUG COMPANY
By /s/ R.A. Stranahan, Jr.
----------------------------
CHAMPION SPARK PLUG COMPANY President
(SEAL)
ATTEST:
/s/ T.A. Hill
------------------
Secretary
THE DeVILBISS COMPANY
By /s/ Henry M. Kidd
----------------------------
THE DeVILBISS COMPANY President
(SEAL)
TOLEDO, OHIO
ATTEST:
/s/ Frank R. Pitt
---------------------
Secretary
<PAGE>
-3-
STATE OF OHIO )
) ss.
COUNTY OF LUCAS )
BE IT REMEMBERED that on this 15th day of December, 1969, personally
came before me, a Notary Public in and for the County and State aforesaid,
Robert A. Stranahan, Jr., President of Champion Spark Plug Company, a
corporation of the State of Delaware, and he duly executed said Agreement of
Merger before me and acknowledged the said Agreement of Merger to be his act and
deed and the act and deed of said corporation and the facts stated therein are
true and that the seal affixed to said Agreement of Merger and attested by the
Secretary of said corporation is the common or corporate seal of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the
day and year aforesaid.
Notary Public
(SEAL) CHARLES F. GREINER
Notary Public, Lucas County, Ohio
My Commission Expires Jan. 16, 1974
NOTARIAL SEAL
LUCAS COUNTY, OHIO
<PAGE>
-4-
STATE OF OHIO )
) ss.
COUNTY OF LUCAS )
BE IT REMEMBERED that on this 15th day of December, 1969, personally
came before me, a Notary Public in and for the County and State aforesaid, Henry
M. Kidd, President of The DeVilbiss Company, a corporation of the State of Ohio,
and he duly executed said Agreement of Merger before me and acknowledged the
said Agreement of Merger to be his act and deed and the act and deed of said
corporation and the facts stated therein are true; and that the seal affixed to
said Agreement of Merger and attested by the Secretary of said corporation is
the common or corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the
day and year aforesaid.
Notary Public
(SEAL) HELEN HECHT
Notary Public, Lucas County, Ohio
My Commission Expires December 11, 1973
NOTARIAL SEAL
LUCAS COUNTY, OHIO
<PAGE>
CERTIFICATE AS TO ADOPTION
OF
AGREEMENT OF MERGER
BY
THE DeVILBISS COMPANY
We, Henry M. Kidd, President and Frank R. Pitt, Secretary of The
DeVilbiss Company, an Ohio corporation, do hereby certify, in accordance with
the provisions of Section 1701.80 of the Revised Code of Ohio:
1. That the foregoing Agreement of Merger was approved and adopted
by the Directors of said corporation at a meeting of the Board of Directors duly
called and held for such purpose on August 15, 1969 and at such meeting, said
Directors directed that said Agreement of Merger be submitted to said
corporation's shareholders at a special meeting thereof to be held on October 8,
1969.
2. That thereafter a special meeting of shareholders of said
corporation was duly called to be held on October 8, 1969; that notice of such
meeting was given to all shareholders of said corporation, whether or not
entitled to vote thereat, said notice being accompanied by a copy of said
Agreement of Merger.
3. That on October 8, 1969 a special meeting of shareholders of said
corporation was held and said Agreement of Merger was submitted to said
shareholders for approval and was approved and adopted by the affirmative vote
of the holders of shares of said corporation entitling them to exercise more
than two-thirds (2/3) of the voting power of said corporation on such proposal.
<PAGE>
-2-
4. That said Agreement of Merger has been signed by the President
and Secretary of said corporation as required by Section 1701.78 of the Revised
Code of Ohio.
/s/ Henry M. Kidd
---------------------------------
Henry M. Kidd, President
/s/ Frank R. Pitt
---------------------------------
Frank R. Pitt, Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION
of
CHAMPION SPARK PLUG COMPANY
Pursuant to Section 242 of the General Corporation Law of the State of Delaware
----------------------------------
CHAMPION SPARK PLUG COMPANY (hereinafter called the "corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the corporation at a meeting
duly held adopted resolutions proposing and declaring advisable the following
amendment to the Certificate of Incorporation of the corporation, as heretofore
amended:
RESOLVED, that in the judgment of this Board it is advisable that
Article FOURTH of the Certificate of Incorporation of this corporation
be amended to read as follows:
"FOURTH. The total number of shares of stock which the
Corporation shall have authority to issue is twenty million
(20,000,000) shares of common stock with a par vale of 83 1/3c
per share.
The aggregate number of shares of common stock with a par
value of $1 2/3 per share issued and outstanding on the effective
date of this amendment shall be reclassified and changed into
twice such number of shares of common stock with a par value of
83 1/3c per share so that each such outstanding share of common
stock with a par value of $1 2/3 per share shall, on such date,
be changed into and become two (2) shares of common stock with a
par value of 83 1/3c per share."
<PAGE>
-2-
SECOND: That the amendment herebefore set forth in this Certificate
was duly adopted in accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.
THIRD: That the capital of the corporation will not be reduced under
or by reason of the amendment herebefore set forth in this Certificate.
IN WITNESS WHEREOF, Champion Spark Plug Company has caused its
corporate seal to be hereunto affixed and this Certificate to be signed by its
President and its Secretary, this 22nd day of April, 1968.
CHAMPION SPARK PLUG COMPANY
CHAMPION SPARK PLUG COMPANY
SEAL By /s/ R. A. Stranahan, Jr.
-------------------------------------
R. A. Stranahan, Jr., President
By /s/ T.A.Hill
-------------------------------------
T.A. Hill
Attest: /s/ T.A. Hill
---------------------
T. A. Hill, Secretary
<PAGE>
-3-
STATE OF OHIO )
) ss.
COUNTY OF LUCAS )
BE IT REMEMBERED that on this 22nd day of April, 1968, personally came
before me, Charles F. Greiner, the subscriber, a notary public in and for the
County and State aforesaid, R. A. Stranahan, Jr., President of Champion Spark
Plug Company, a corporation of the State of Delaware, the corporation described
in the foregoing Certificate, known to me personally to be such, and he, the
said R. A. Stranahan, Jr., as such President, duly executed said Certificate
before me, and acknowledged said Certificate to be his act and deed and the act
and deed of said corporation; that the signatures of said President and of the
Secretary of said corporation to the foregoing Certificate are in the
handwritings of said President and said Secretary of said corporation,
respectively; that the seal affixed to said Certificate is the common or
corporate seal of said corporation; that the act of sealing, executing,
acknowledging and filing said Certificate was duly authorized by resolution of
the Board of Directors and by the stockholders of said corporation, and that the
facts stated therein are true.
Given under my hand and seal of office the day and year aforesaid.
CHARLES F. GREINER Notary Public
Notary Public, Lucas County, Ohio
My Commission Expires Jan. 16, 1969
NOTARIAL SEAL
LUCAS COUNTY, OHIO
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
CHAMPION SPARK PLUG COMPANY, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST. That at a meeting of the Board of Directors of said Champion
-----
Spark Plug Company resolutions were duly adopted setting forth a proposed
amendment to the Certificate of Incorporation of said corporation, declaring
said amendment to be advisable and calling a meeting of the stockholders of said
corporation for consideration thereof. The resolution setting forth the
proposed amendment is as follows:
RESOLVED, that the following change in authorized
shares of stock, reclassification of shares of stock, and
amendments to the Certificate of Incorporation of the
corporation be, and the same hereby are, proposed and
declared advisable:
1. The number of shares of stock which the
corporation is authorized to issue and have outstanding is
changed from 1,250,000 shares of common stock with a par
value of $10 per share to 10,000,000 shares of common stock
and the change of such shares of common stock from shares
with a par value of $10 per share to shares with a par value
of $1 2/3 per share.
2. The 1,010,810 shares of common stock with a par
value of $10 per share heretofore issued and now outstanding
are changed into 6,064,860 shares of common stock with a par
value of $1 2/3 per share so that each holder of one
outstanding share of common stock with a par value of $10
per share shall hereafter hold six (6) shares of common
stock with a par value of $1 2/3 per share.
3. The Certificate of Incorporation of the
corporation is hereby amended so as to read as follows:
<PAGE>
-2-
"FIRST. The name of this corporation is and shall
-----
be CHAMPION SPARK PLUG COMPANY.
"SECOND. The principal office of the corporation
------
in the State of Delaware is and shall be located at Number
100 West Tenth Street, in the City of Wilmington, County of
New Castle, and the name and address of its resident agent
are and shall be The Corporation Trust Company, Number 100
West Tenth Street, Wilmington, Delaware.
"THIRD. The nature of the business, or objects or
-----
purposes to be transacted, promoted or carried on are as
follows:
"(1) To manufacture, design, develop, buy or
otherwise acquire, sell and deal in spark plugs, electrical
ignition devices, and any and all kinds of electrical
equipment, machinery, parts and appliances for motor
vehicles, motors and engines, and articles and supplies used
or useful in connection with any of the foregoing.
"(2) To manufacture, design, develop, buy or
otherwise acquire, sell, transfer, exchange or otherwise
dispose of, and to invest, trade and deal in or with goods,
wares and merchandise and personal property of every kind
and description.
"(3) To purchase, hold, own, sell, exchange,
transfer, pledge, or otherwise trade or deal in or dispose
of stocks, bonds, mortgages, debentures, evidences of
indebtedness and securities of every kind and description of
any corporation, trust, business organization, government or
subdivision thereof, domestic or foreign, and to exercise in
respect thereto all rights and privileges of individual
ownership, including the right to receive the income
therefrom and to vote thereon and to guarantee the same or
become surety in respect thereto.
"(4) To undertake and carry out the
financing, financial adjustment, reorganization,
<PAGE>
-3-
consolidation, merger and liquidation of any corporation or
of any undertaking, business, affairs or interests and to
transact any business necessary or convenient relating or
incident hereto.
"(5) To enter into, assist, promote, conduct,
perform or participate in, every kind of commercial,
mercantile or industrial enterprise, business, or work,
contract, undertaking, venture or operation.
"(6) To purchase or otherwise acquire, take
over, hold, sell, liquidate, or otherwise dispose of, the
real estate, plants, equipment, inventory, merchandise,
materials and other assets, shares, good will, rights,
franchises, patents, trade-marks and trade names and other
properties of domestic or foreign corporations, firms,
associates, syndicates, individuals, and others; to
continue, alter, extend or develop, their business, assume
their liabilities, guarantee or become surety for the
performance of their obligations; reorganize their capital,
and participate in any way in their affairs; to take over as
a going concern and continue, in its own name, any business
so acquired and to pay for any such business or properties
in cash, stocks, bonds, debentures, securities, or
obligations of this corporation, or otherwise.
"(7) To apply for, obtain, register,
purchase, lease or otherwise acquire, and to hold, own, use,
exercise, develop, operate and introduce, and to sell,
assign, grant licenses in respect of, or otherwise dispose
of, any patents and inventions, improvements and processes
used in connection with or secured under Letters Patent of
the United States or any dependency, colony, or insular
possession of the United States, or of any foreign
government, trade-marks and trade names, and to acquire,
use, exercise, or otherwise turn to gain licenses in respect
of any such patents, inventions, processes and the like, or
any such property rights.
"(8) To purchase, hold, re-issue, sell,
exchange or otherwise deal in its own securities,
<PAGE>
-4-
including shares of its capital stock of any class, as and
to the extent now or from time to time permitted by the laws
of the State of Delaware.
"(9) To carry on any or all of its operations
and business and to promote its objects within the State of
Delaware or elsewhere, without restrictions as to place or
amount.
"The purposes specified in any clause or paragraph
contained in this Article THIRD shall be deemed to be
independent purposes, and shall not be limited or restricted
by reference to or inference from the terms of any other
clause or paragraph contained in this Certificate of
Incorporation.
"FOURTH. The total number of shares of stock which
------
the corporation shall have authority to issue is 10,000,000
shares of common stock with a par value of $1 2/3 per share.
"FIFTH. The amount of capital with which the
-----
corporation will commence business is One Thousand Dollars
($1,000.00).
"SIXTH. The name and place of residence of each
-----
of the incorporators are as follows:
Names Addresses
----- ---------
L. E. Gray Wilmington, Delaware
L. H. Herman Wilmington, Delaware
Walter Lenz Wilmington, Delaware
"SEVENTH. The corporation shall have perpetual
-------
existence.
"EIGHTH. The private property of the stockholders
------
of the corporation shall not be subject to the payment of
corporate debts to any extent whatever.
"NINTH.
-----
<PAGE>
-5-
"(1) The stockholders and directors of the
corporation shall have power, if the By-Laws so provide, to
hold their meetings either within or without the State of
Delaware, and to have one or more offices and places of
business either within or without the State of Delaware in
addition to the principal office in Delaware.
"(2) Each holder of record of shares of
common stock shall be entitled to one vote for each share
standing in his name on the books of the corporation, at all
meetings of stockholders and for all purposes; subject,
nevertheless, to the right of the Board of Directors to
close the stock transfer books of the corporation prior to
any meeting, or to fix in advance a record date for the
determination of stockholders entitled to notice of, or to
vote at, any meeting, or to consent, for any purpose.
"(3) An election of directors need not be by
ballot unless requested by a stockholder entitled to vote at
the election.
"TENTH. No holder of shares of stock of any class
-----
of the corporation shall be entitled as such, as a matter of
right, to subscribe for or purchase shares of stock of any
class whatsoever, whether now or hereafter authorized, or to
purchase or subscribe for securities convertible into or
exchangeable for shares of stock of the corporation, or to
which shall be attached or appertain any warrants or rights
entitling the holder thereof to subscribe for or purchase
shares of stock, except such rights of subscription or
purchase, if any, at such price or prices and upon such
terms and conditions as the Board of Directors, in its
discretion, may from time to time determine.
"ELEVENTH. In furtherance and not in limitation of
--------
the powers conferred by the laws of the State of Delaware,
the Board of Directors is expressly authorized:
<PAGE>
-6-
"(1) Subject to any limitations that may be
imposed by the stockholders, to make, alter, amend
and repeal By-Laws of the corporation, but any By-
Laws made by the Board of Directors or
stockholders may be altered, amended or repealed
by the stockholders at any annual meeting, or at
any special meeting, the notice of which includes
notice of such proposed alteration, amendment or
repeal.
"(2) To fix and determine, and to vary the
amount of working capital of the corporation; to
determine whether any, and if any what part, of
its net assets or surplus, however created or
arising, shall be used or disposed of or declared
in dividends or paid to stockholders; to use and
apply such net assets or surplus, or any part
thereof, at any time or from time to time, in the
purchase or acquisition of shares of stock or
securities of any class, to such extent or amount
and in such manner and upon such terms as the
Board of Directors shall deem expedient.
"(3) Without the assent or vote of the
stockholders, to borrow money without limit as to
amount, to authorize and issue obligations of the
corporation, secured or unsecured, upon such terms
and conditions as the Board of Directors shall
deem expedient, and to authorize the mortgaging or
pledging as security therefore of any property of
the corporation, real or personal, including after-
acquired property.
"TWELFTH. A director of this corporation
-------
shall not be disqualified by his office from
dealing or contracting with the corporation as a
vendor, purchaser, employee, agent or otherwise;
nor shall any transaction or contract or act of
this corporation be void or voidable, or in any
way affected or invalidated, by reason of the fact
that any director or any firm of which any
director is a member, or any corporation of which
any director is a stockholder or director, is in
any way interested in such transaction or contract
or act, provided the fact that such director, or
such firm, or such corporation, is so interested,
shall be disclosed
<PAGE>
-7-
or shall be known to the Board of Directors or
such members thereof as shall be present at any
meeting of the Board of Directors at which action
upon any such contract or transaction or act shall
be taken; nor shall any such director be liable to
account to the corporation for any gains or
profits realized by or from or through any such
transaction or contract or act of this
corporation, by reason of the fact that he or any
firm of which he is a member, or any corporation
of which he is a stockholder or director, is
interested in such transaction, contract or act;
and any such director may be counted in
determining the existence of a quorum at any
meeting of the Board of Directors of the
corporation which shall authorize any such
contract or transaction or act, and may vote to
authorize, ratify or approve any such contract or
transaction or act, with like force and effect as
if he, or any firm of which he is a member, or any
corporation of which he is a stockholder or
director, were not interested in such transaction
or contract or act.
"THIRTEENTH. The corporation reserves the
----------
right to amend, alter, change or repeal any
provision contained in this Certificate of
Incorporation in the manner now or hereafter
prescribed by statute, and all rights conferred on
stockholders herein are granted subject to this
reservation.
"FOURTEENTH. Every person who is or has been
----------
a director, officer or employee of the corporation
and any person who is serving or may have served
at its request as a director, officer or employee
of any other corporation in which the corporation
owns stock or of which it is a creditor, and each
of their heirs, executors and administrators,
shall be reimbursed and indemnified for or against
any and all judgments, liabilities, fines and
penalties imposed upon them, any amounts paid in
settlement, and the costs and expenses reasonably
incurred in connection with or arising from any
actions, claim, suit, proceeding, hearing or
investigation, whether civil, criminal or
administrative, in which they or any of them are
involved by reason of being a director, officer or
employee of the
<PAGE>
-8-
corporation or of such other corporation. The
corporation shall not, however, reimburse or
indemnify any such officer, director or employee
with respect to any judgment, fine or penalty or
amount paid in settlement, in any such action,
claim, suit, proceeding, hearing or investigation
unless independent legal counsel shall have
advised the corporation that (a) the conduct of
such director, officer or employee did not
constitute negligence or misconduct for which he
is liable to the corporation, and (b) the
settlement, if any, is fair and in the best
interest of the corporation.
"In the case of a criminal action, suit or
proceeding, a plea, conviction or judgment shall
not necessarily be deemed to constitute an
adjudication that such director, officer or
employee is liable for negligence or misconduct to
the corporation.
"The rights of reimbursement and
indemnification shall be in addition to all other
rights to which such directors, officers and
employees may be entitled as a matter of law."
RESOLVED FURTHER, that the Board of Directors of this
corporation declare it advisable and recommend to the
stockholders the adoption of amendments to the
Certificate of Incorporation, as heretofore amended, so
as to carry into effect the foregoing changes in shares
of stock and amendments; and that if the stockholders
approve the proposed amendments or any part thereof,
the President or a Vice President, and the Secretary or
an Assistant Secretary, be and they hereby are,
authorized and directed to execute a Certificate of
Amendment to the Certificate of Incorporation, as
heretofore amended, and to file the same with the
Secretary of State of the State of Delaware, as
required by the General Corporation Law of the State of
Delaware, and in such other states wherein the company
is authorized to do business and in which the filing
thereof is required by law or deemed to be advisable,
and to do and perform such other acts and things as may
be proper and appropriate to carry the foregoing
resolutions into full force and effect.
<PAGE>
-9-
SECOND. That thereafter, pursuant to resolution of its Board of
------
Directors, a special meeting of the stockholders of said corporation was duly
called and held, at which meeting the necessary number of stockholders as
required by statute voted in favor of the amendment.
THIRD. That said amendment was duly adopted in accordance with the
-----
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH. That the capital of said corporation will not be reduced
------
under or by reason of said amendment.
IN WITNESS WHEREOF, said CHAMPION SPARK PLUG COMPANY has caused its
corporate seal to be hereunto affixed and this Certificate to be signed by H. B.
Speyer, its Vice President, and T. A. Hill, its Secretary, this 19th day of
August, 1958.
CHAMPION SPARK PLUG COMPANY
By /s/ H.B. Speyer
--------------------------------
Vice President
By /s/ T.A. Hill
--------------------------------
Secretary
<PAGE>
-10-
STATE OF OHIO )
) ss.
COUNTY OF LUCAS )
BE IT REMEMBERED that on this 19th day of August, 1958, personally
came before me, a Notary Public in and for the County and State aforesaid, H. B.
Speyer, Vice President of CHAMPION SPARK PLUG COMPANY, a corporation of the
State of Delaware, the corporation described in and which executed the foregoing
certificate, known to me personally to be such, and he, the said H. B. Speyer,
as such Vice President, duly executed said Certificate before me and
acknowledged the said Certificate to be his act and deed and the act and deed of
said corporation; that the signatures of the said Vice President and of the
Secretary of said corporation to said foregoing Certificate are in the
handwriting of the said Vice President and Secretary of said corporation,
respectively; and that the seal affixed to said Certificate is the common or
corporation seal of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and seal of office
the day and year aforesaid.
NOTARIAL SEAL
_________________________________
LUCAS COUNTY, OHIO Notary Public
E. G. GREINER
Notary Public, Lucas County, Ohio
My Commission Expires August 25, 1959
<PAGE>
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
CHAMPION SPARK PLUG COMPANY
Champion Spark Plug Company, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware
DOES HEREBY CERTIFY:
FIRST: That, at a meeting of the Board of Directors of said Champion
-----
Spark Plug Company duly held and convened, resolutions were adopted setting
forth a proposed amendment to the Certificate of Incorporation of said Company
and declaring said amendment advisable and calling a meeting of the stockholders
of said Company for consideration thereof. The resolution setting forth the
proposed amendment is as follows:
RESOLVED, That the Certificate of Incorporation and Champion Spark
Plug Company, as amended, be and it hereby is amended by changing the
article thereof number Article Sixth to read as follows:
"ARTICLE SIXTH: The total number of shares
which the surviving corporation shall have
authority to issue is one million two hundred
fifty thousand (1,250,000) common shares with
a par value of Ten Dollars ($10) each."
SECOND: That thereafter, pursuant to resolutions of its Board of
------
Directors, a meeting of the stockholders of said Company was duly called and
held, at which meeting the necessary number of stockholders as required by
statute voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
-----
provisions of Section 26 of the General Corporation Law of Delaware, as amended.
IN WITNESS WHEREOF, said Champion Spark Plug Company has caused its
corporate seal to be hereunto affixed and this Certificate to be signed by H. B.
Speyer, its Vice President and Mr. T. A. Hill, its Secretary, this 9th day of
October, 1952.
<PAGE>
-2-
/s/ H. B. Speyer
-----------------------
Vice President
CHAMPION SPARK PLUG COMPANY
(SEAL)
/s/ T. A. Hill
-----------------------
Secretary
<PAGE>
-3-
STATE OF OHIO )
) SS.
COUNTY OF LUCAS )
BE IT REMEMBERED, that on this 9th day of October, A.D. 1952,
personally came before me, E. G. Greiner, a Notary Public in and for the county
and state aforesaid, Mr. H. B. Speyer, Vice President of Champion Spark Plug
Company, a corporation of the State of Delaware, the corporation described in
and which executed the foregoing certificate, known to me personally to be such,
and that he, the said Mr. H. B. Speyer as such Vice President, duly executed
said certificate before me and acknowledged the said certificate to be his act
and deed and the act and deed of said corporation; that the signatures of the
said Vice President and the Secretary of said corporation to said foregoing
certificate are in the handwriting of said Vice President and Secretary of said
corporation, respectively, and that the seal affixed to said certificate is the
common or corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the
day and year aforesaid.
/s/ E. G. Greiner
----------------------------------
Notary Public, Lucas County, Ohio
E. G. GREINER
Notary Public, Lucas County, Ohio
NOTARIAL (SEAL) My Commission Expires August 24, 1958.
LUCAS COUNTY, OHIO
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
----------------------------
OF
CHAMPION SPARK PLUG COMPANY
---------------------------
CHAMPION SPARK PLUG COMPANY, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That, at a meeting of the Board of Directors of CHAMPION SPARK
-----
PLUG COMPANY duly held and convened, resolutions were duly adopted setting forth
a proposed Amendment to the Certificate of Incorporation of said Corporation and
declaring said Amendment advisable and calling a meeting of the stockholders of
said Corporation for consideration thereof. The resolutions setting forth the
proposed Amendment are as follows:
WHEREAS, Eighteen Thousand Three Hundred
Seventy-Three (18,373) of the Company's preferred
shares, with a par value of One Hundred Dollars
($100) each, have been retired; and
WHEREAS, The Board of Directors considers it
advisable to cancel and extinguish Eighteen
Thousand Three Hundred Seventy-Three (18,373)
preferred shares, with a par value of One Hundred
Dollars ($100) each, (all other preferred shares
having heretofore been canceled and extinguished),
and (2) to amend Article Sixth of the Certificate
of Incorporation;
NOW THEREFORE BE IT RESOLVED, That the
following cancellation and extinguishment of
Eighteen Thousand Three Hundred Seventy-Three
(18,373) preferred shares, with a par value of One
Hundred Dollars ($100) each, and Amendment to the
Certificate of Incorporation be, and the same
hereby are, proposed and declared to be advisable:
1. That Eighteen Thousand Three Hundred Seventy-Three
(18,373) preferred shares, having a par value
<PAGE>
-2-
of One Hundred Dollars ($100) each, be, and the
same hereby are, canceled.
2. That the Certificate of Incorporation, as
heretofore amended, be, and the same hereby is,
amended by striking out and eliminating the
provisions of Article Sixth in their entirety and
by the insertion of a new Article Sixth in lieu
thereof, to read as follows:
"SIXTH: The total number of shares of stock
which the surviving corporation shall have
authority to issue is Two Hundred Fifty Thousand
(250,000) common shares, with a par value of Ten
Dollars ($10) each."
RESOLVED FURTHER, That the President or a
Vice President and the Secretary or an Assistant
Secretary be, and they hereby are, authorized and
directed to execute a Certificate of Amendment to
the Certificate of Incorporation, as heretofore
amended, and to file the same with the Secretary
of State of the State of Delaware, as required by
the General Corporation Law of the State of
Delaware, and in such other states wherein the
Company is authorized to do business and in which
the filing thereof is required by law to be deemed
advisable, and to do and perform such other acts
and things as may be proper and appropriate to
carry the foregoing resolutions into full force
and effect.
SECOND: That thereafter, pursuant to resolutions of its Board of
Directors, a meeting of the stockholders of said Corporation was duly called and
held, at which meeting the necessary number of stockholders as required by
statute voted in favor of the Amendment.
THIRD: That said Amendment was duly adopted in accordance with the
provisions of Section 26 of the General Corporation Law of Delaware, as amended.
FOURTH: That said Amendment does not effect any change in the issued
shares of said Corporation.
<PAGE>
-3-
IN WITNESS WHEREOF, said CHAMPION SPARK PLUG COMPANY has caused its
corporate seal to be hereunto affixed and this Certificate to be signed by F. D.
Stranahan, its Vice President and T. A. Hill, its Secretary, this 19th day of
February, 1951.
CHAMPION SPARK PLUG COMPANY
SEAL
CHAMPION SPARK PLUG COMPANY
By /s/ F. D. Stranahan
---------------------------------------
President
By /s/ T. A. Hill
---------------------------------------
Secretary
<PAGE>
-4-
STATE OF OHIO )
) ss.
COUNTY OF LUCAS )
BE IT REMEMBERED, That on this 19th day of February, A. D., 1951,
personally came before me E. G. Greiner, a Notary Public in and for the County
and State aforesaid, and F. D. Stranahan, Vice President of CHAMPION SPARK PLUG
COMPANY, a corporation of the State of Delaware, the corporation described in
and which executed the foregoing Certificate, known to me personally to be such,
and the said F. D. Stranahan as such Vice President, duly executed said
Certificate before me and acknowledged the said Certificate to be his act and
deed and the act and deed of said Corporation; that the signatures of the said
Vice President and of the Secretary of said Corporation to the foregoing
Certificate are in the handwriting of the said Vice President and Secretary of
said Corporation, respectively; and that the seal affixed to said Certificate
is the common or corporate seal of said Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the
day and year aforesaid.
E. G. Greiner
-----------------------------------
Notary Public, Lucas County, Ohio
E. G. GREINER
Notary Public, Lucas County, Ohio
NOTARIAL (SEAL) My Commission Expires August 24, 1958.
LUCAS COUNTY, OHIO
<PAGE>
CERTIFICATE OF REDEMPTION
of
PREFERRED STOCK OUT OF CAPITAL
of
CHAMPION SPARK PLUG COMPANY
CHAMPION SPARK PLUG COMPANY, a corporation organized and existing under the
General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY as
follows:
FIRST: That pursuant to the provisions of Section 27 of the General
Corporation Law of the State of Delaware, as amended, and subject to the
provisions of its Certificate of Incorporation, Eighteen Thousand Three Hundred
Seventy-three (18,373) shares of its issued and outstanding preferred stock were
redeemed and retired.
SECOND: That the amount of capital of said corporation which was applied
to such redemption of said Eighteen Thousand Three Hundred Seventy-three
(18,373) preferred shares was One Million Eight Hundred Thirty-seven Thousand
Three Hundred Dollars ($1,837,300.00).
That the capital of the corporation is hereby reduced by the amount of
capital which was applied to such redemption, to-wit, One Million Eight Hundred
Thirty-seven Thousand Three Hundred Dollars ($1,837,300.00), which amount is the
same as the amount of capital represented by the shares so redeemed.
THIRD: That the assets of the corporation remaining after such redemption
are sufficient to pay any debts of the corporation, the payment of which has not
been otherwise provided for.
<PAGE>
-2-
IN WITNESS WHEREOF, said CHAMPION SPARK PLUG COMPANY has caused its
corporate seal to be affixed and this Certificate to be signed by R.A.
Stranahan, its President, and H. B. Speyer, its Secretary, this 13th day of May,
1948.
CHAMPION SPARK PLUG COMPANY
By /s/ R. A. STRANAHAN
----------------------------
President
Champion Spark Plug Company By /s/ H. B. SPEYER
----------------------------
Seal President
<PAGE>
-3-
STATE OF OHIO )
) ss.
COUNTY OF LUCAS )
BE IT REMEMBERED, that on this 13th day of May, A. D. 1948, personally came
before me, E. G. Greiner, a Notary Public in and for the County and State
aforesaid, R. A. Stranahan, President of Champion Spark Plug Company, a
corporation of the State of Delaware, the corporation described in and which
executed the foregoing Certificate, known to me personally to be such, and, he,
the said R. A. STRANAHAN, as such President duly executed said Certificate
before me and acknowledged the said Certificate to be his act and deed and the
act and deed of said corporation; that the signatures of the said President and
of the Secretary of said corporation to the said foregoing Certificate are in
the handwriting of the said President and Secretary of said corporation,
respectively, and that the seal affixed to said certificate is the common or
corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day
and year aforesaid.
/s/ E. G. GREINER
---------------------------------
Notary Public, Lucas County, Ohio
E. G. GREINER
Notary Public, Lucas County, Ohio
Notary Seal My Commission Expires Aug. 24, 1950
Lucas County, Ohio
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CHAMPION SPARK PLUG COMPANY
Champion Spark Plug Company, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware DOES
HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of said Champion
Spark Plug Company duly held and convened, resolutions were duly adopted setting
forth a proposed amendment to the certificate of incorporation of said
corporation and declaring said amendment advisable and calling a meeting of the
stockholders of said corporation for consideration thereof. The resolution
setting forth the proposed amendment is as follows:
WHEREAS, Eighty-Three Thousand, Six Hundred
Twenty-Seven (83,627) of the Company's Preferred Shares
with a par value of One Hundred Dollars ($100.00) each
have been retired; and
WHEREAS, the Board of Directors considers it
advisable (1) to cancel and extinguish Eighty-Three
Thousand, Six Hundred Twenty-Seven (83,627) Preferred
Shares with a par value of One Hundred Dollars
($100.00) each and (2) amend Article Sixth of the
Certificate of Incorporation;
NOW THEREFORE BE IT RESOLVED, That the
following cancellation and extinguishment of Eighty-
Three Thousand, Six Hundred Twenty-Seven (83,627)
Preferred Shares with a par value of One Hundred
Dollars ($100.00) each and amendment to the Certificate
of Incorporation be and the same hereby are proposed
and declared to be advisable:
1. That Eighty-Three Thousand Six Hundred
Twenty-Seven (83,627) of the Company's Preferred Shares
having a
<PAGE>
-2-
par value of One Hundred Dollars ($100.00) each, be and
the same hereby are cancelled.
2. That the Certificate of Incorporation be
and the same hereby is amended by striking out the
paragraph of Article SIXTH which reads as follows:
"SIXTH: The total number of shares of
stock which the surviving corporation
(hereinafter referred to in this Article
Sixth as the 'corporation') shall have
authority to issue is Three Hundred Fifty-Two
Thousand (352,000), consisting of One Hundred
Two Thousand (102,000) Preferred Shares with
a par value of One Hundred Dollars ($100.00)
each, and Two Hundred Fifty Thousand
(250,000) common shares with a par value of
Ten Dollars ($10.00) each."
and inserting in lieu thereof a new paragraph reading
as follows:
"SIXTH: The total number of shares of
stock which the surviving corporation
(hereinafter referred to in this Article
Sixth as the 'corporation') shall have
authority to issue is Two Hundred Sixty-Eight
Thousand, Three Hundred Seventy-Three
(268,373), consisting of Eighteen Thousand
Three Hundred Seventy-Three (18,373)
Preferred Shares with a par value of One
Hundred Dollars ($100.00) each and Two
Hundred Fifty Thousand (250,000) common
shares with a par value of Ten Dollars
($10.00) each."
RESOLVED FURTHER, That the President or Vice
President and the Secretary or Assistant Secretary be
and they hereby are authorized and directed to execute
a Certificate of Amendment to the Certificate of
Incorporation and file the same with the Secretary of
the State of Delaware as required by the General
Corporation Law of the State of Delaware and in such
other states wherein the Company is authorized to do
business and in which the filing thereof is required by
law or deemed advisable, and to do and perform such
other and further acts and things as may be proper and
appropriate to carry the foregoing resolutions into
full force and effect.
<PAGE>
-3-
SECOND: That thereafter, pursuant to resolution of its board of
directors, a special meeting of the stockholders of said corporation was duly
called and held, at which meeting the necessary number of stockholders as
required by statute voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 26 of the General Corporation Law of Delaware as amended.
FOURTH: That said amendment does not effect any change in the issued
shares of said corporation.
IN WITNESS WHEREOF, said Champion Spark Plug Company has caused its
corporate seal to be hereunto affixed and this certificate to be signed by R. A.
Stranahan, its President, and H. B. Speyer, its Secretary this 29th day of July,
1946.
CHAMPION SPARK PLUG COMPANY
CHAMPION SPARK PLUG COMPANY
SEAL By /s/ R.A. Stranahan
-----------------------------------
President
By /s/ H.B. Speyer
------------------------------------
Secretary
<PAGE>
-4-
STATE OF OHIO )
) ss.
COUNTY OF LUCAS )
BE IT REMEMBERED that on this 29th day of July A.D., 1946, personally
came before me J. M. Robinson a Notary Public in and for the County and State
aforesaid, R. A. Stranahan, President of Champion Spark Plug Company, a
corporation of the State of Delaware, the corporation described in and which
executed the foregoing certificate, known to me personally to be such, and he,
the said R. A. Stranahan, as such President, duly executed said certificate
before me and acknowledged the said certificate to be his act and deed and the
act and deed of said corporation; that the signatures of the said President and
of the Secretary of said corporation to the foregoing certificate are in the
handwriting of the said President and Secretary of said Company respectively,
and that the seal affixed to said certificate is the common or corporate seal of
said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the
day and year aforesaid.
Notary Public
NOTARIAL SEAL
LUCAS COUNTY, O.
<PAGE>
CERTIFICATE OF REDUCTION
OF CAPITAL
OF
CHAMPION SPARK PLUG COMPANY
Champion Spark Plug Company, a corporation organized and existing
under the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY
as follows:
1. That at a meeting of its board of directors duly held and
convened, a resolution was adopted setting forth a proposed reduction of the
outstanding capital of said corporation in the manner and to the extent
hereinafter set forth and calling a meeting of the stockholders having voting
powers for the consideration thereof.
2. That thereafter at a special meeting of the stockholders of the
above named corporation called upon at least five days' notice, given in
accordance with the by-laws thereof, for the purpose of voting upon the question
of reducing its outstanding capital, the following resolution was duly adopted
by the holders of record of a majority of the outstanding shares of stock of the
corporation, having voting powers, reducing the capital of the corporation by
the amount of Two Million Two Hundred Thousand Dollars ($2,200,000.00):
WHEREAS, Twenty-Two Thousand (22,000) Preferred shares with
a par value of One Hundred Dollars ($100,000) each have been
surrendered to the Company for retirement;
NOW THEREFORE BE IT RESOLVED THAT:
1. Said Twenty-Two Thousand (22,000) Preferred Shares with
a par value of One Hundred Dollars ($100.00) each, be and the same
hereby are retired:
<PAGE>
-2-
2. The proper officer or officers of the Company be and
hereby are authorized and directed to charge against the capital of
the Company an amount equal to the par value of said Twenty-Two
Thousand (22,000) Preferred Shares, to-wit, Two Million, Two Hundred
Thousand Dollars, ($2,200,000.00):
3. The capital of the Company be and it hereby is reduced
in the amount of Two Million Two Hundred Thousand Dollars
($2,200,000.00).
RESOLVED FURTHER, That the President or Vice President and
the Secretary or Assistant Secretary be and they hereby are authorized
and directed to execute a Certificate of Reduction of Capital and file
the same with the Secretary of the State of Delaware as required by
the General Corporation Law of the State of Delaware and in such other
states wherein the Company is authorized to do business and in which
the filing thereof is required by law or deemed advisable and to do
and perform such other and further acts and things as may be proper
and appropriate to carry the foregoing resolutions into full force and
effect.
3. That the assets of the corporation remaining after such reduction
are sufficient to pay any debts, the payment of which has not been otherwise
provided for.
IN WITNESS WHEREOF, said Champion Spark Plug Company has caused its
corporate seal to be affixed and this certificate to be signed by R. A.
Stranahan, its President and H. B. Speyer, its Secretary, this 29th day of July,
1946.
CHAMPION SPARK PLUG COMPANY CHAMPION SPARK PLUG COMPANY
SEAL
By /s/ R.A. Stranahan
----------------------------------------
President
By /s/ H.B. Speyer
----------------------------------------
Secretary
<PAGE>
-3-
STATE OF OHIO )
) ss.
COUNTY OF LUCAS )
BE IT REMEMBERED that on this 29th day of July A. D., 1946, personally
came before me, Jim Robinson a Notary Public in and for the County and State
aforesaid, R. A. Stranahan, President of Champion Spark Plug Company, a
corporation of the State of Delaware, the corporation described in and which
executed the foregoing certificate, known to me personally to be such, and he,
the said R. A. Stranahan, as such President, duly executed said certificate
before me and acknowledged the said certificate to be his act and deed and the
act and deed of said corporation; that the signatures of the said President and
of the Secretary of said corporation to said foregoing certificate are in the
handwriting of the said President and Secretary of said company respectively,
and that the seal affixed to said certificate is the common or corporate seal of
said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the
day and year aforesaid.
NOTARIAL SEAL
LUCAS COUNTY, O. Notary Public
J. M. ROBINSON
Notary Public, Lucas County, Ohio
My Commission Expires Nov. 3, 1947
<PAGE>
CERTIFICATE OF REDEMPTION
OF
PREFERRED STOCK OUT OF CAPITAL
OF
CHAMPION SPARK PLUG COMPANY
CHAMPION SPARK PLUG COMPANY, a corporation organized and existing under the
General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY as
follows:
FIRST: That pursuant to the provisions of Section 27 of the General
Corporation Law of the State of Delaware, as amended, and subject to the
provisions of its Certificate of Incorporation, Twenty-Four Thousand Seven
Hundred and Forty-Four (24,744) shares of its issued and outstanding preferred
stock were redeemed and retired.
SECOND: That the amount of capital of said corporation which was applied to
such redemption of said Twenty-Four Thousand Seven Hundred and Forty-four
(24,744) preferred shares was Two Million Four Hundred Seventy-Four Thousand
Four Hundred Dollars ($2,474,400.00).
That the capital of the corporation is hereby reduced by the amount of
capital which was applied to such redemption, to-wit, Two Million Four Hundred
Seventy-Four Thousand Four Hundred Dollars ($2,474,400.00), which amount is the
same as the amount of capital represented by the shares so redeemed.
THIRD: That the assets of the corporation remaining after such redemption
are sufficient to pay any debts of the corporation, the payment of which has not
been otherwise provided for.
<PAGE>
IN WITNESS WHEREOF, said CHAMPION SPARK PLUG COMPANY has caused its
corporate seal to be affixed and this Certificate to be signed by R. A.
Stranahan, its President, and H. B. Speyer, its Secretary this 28th day of
October, 1942.
CHAMPION SPARK PLUG COMPANY
By: R. A. Stranahan - President
Champion Spark Plug Company By: H. B. Speyer - Secretary
SEAL
<PAGE>
STATE OF OHIO )
) ss.
COUNTY OF LUCAS )
BE IT REMEMBERED, that on this 28th day of October, A.D. 1942, personally
came before me, John M. Robinson, a Notary Public in and for the County and
State aforesaid, R. A. Stranahan, President of Champion Spark Plug Company, a
corporation of the State of Delaware, the corporation described in and which
executed the foregoing Certificate, known to me personally to be such, and he,
the said R. A. Stranahan as such President duly executed said Certificate before
me and acknowledged the said Certificate to be his act and deed and the act and
deed of said corporation; that the signatures of the said President and of the
Secretary of said corporation to the said foregoing Certificate are in the
handwriting of the said President and Secretary of said corporation,
respectively, and that the seal affixed to said certificate is the common or
corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day
and year aforesaid.
John M. Robinson
Notary Public, Lucas County, Ohio.
My commission expires October 23, 1944
Notarial Seal
Lucas County, O.
<PAGE>
CERTIFICATE OF REDEMPTION
OF
PREFERRED STOCK OUT OF CAPITAL
OF
CHAMPION SPARK PLUG COMPANY
CHAMPION SPARK PLUG COMPANY, a corporation organized and existing under the
General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY as
follows:
FIRST: That pursuant to the provisions of Section 27 of the General
Corporation Law of the State of Delaware, as amended, and subject to the
provisions of its Certificate of Incorporation, Twenty Thousand Five Hundred
Sixty-three (20,563) shares of its issued and outstanding preferred stock were
redeemed and retired.
SECOND: That the amount of capital of said corporation which was applied
to such redemption of said Twenty Thousand Five Hundred Sixty-three (20,563)
preferred shares was Two Million Fifty-six Thousand Three Hundred Dollars
($2,056,300.)
That the capital of the corporation is hereby reduced by the amount of
capital which was applied to such redemption, to-wit, Two Million Fifty-six
Thousand Three Hundred Dollars ($2,056,300), which amount is the same as the
amount of capital represented by the shares so redeemed.
THIRD: That the assets of the corporation remaining after such redemption
are sufficient to pay any debts of the corporation, the payment of which has not
been otherwise provided for.
<PAGE>
IN WITNESS WHEREOF, said CHAMPION SPARK PLUG COMPANY HAS caused its
corporate seal to be affixed and this certificate to be signed by R. A.
Stranahan, its President and H. B. Speyer, its Secretary, this 31 day of August,
1942.
CHAMPION SPARK PLUG COMPANY
Champion Spark
Plug Company By Robert A. Stranahan, President
Seal
By H. B. Speyer, Secretary
<PAGE>
STATE OF OHIO )
) ss.
COUNTY OF LUCAS )
BE IT REMEMBERED, that on this 31st day of August, A.D. 1942, personally
came before me, John M. Robinson, a Notary Public in and for the County and
State aforesaid, R. A. Stranahan, President of Champion Spark Plug Company, a
corporation of the State of Delaware, the corporation described in and which
executed the foregoing certificate, known to me personally to be such, and he,
the said R. A. Stranahan as such President duly executed said certificate before
me and acknowledged the said certificate to be his act and deed and the act and
deed of said corporation; that the signatures of the said President and of the
Secretary of said corporation to the said foregoing certificate are in the
handwriting of the said President and Secretary of said corporation,
respectively, and that the seal affixed to said certificate is the common or
corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day
and year aforesaid.
John M. Robinson
Notary Public, Lucas County, Ohio.
Notarial Seal
Lucas County, O.
<PAGE>
CERTIFICATE OF REDEMPTION
OF
PREFERRED STOCK OUT OF CAPITAL
OF
CHAMPION SPARK PLUG COMPANY
CHAMPION SPARK PLUG COMPANY, a corporation organized and existing under the
General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY as
follows:
FIRST: That pursuant to the provisions of Section 27 of the General
Corporation Law of the State of Delaware, as amended, and subject to the
provisions of its Certificate of Incorporation, Sixteen thousand and three
hundred and twenty (16,320) shares of its issued and outstanding preferred stock
were redeemed and retired.
SECOND: That the amount of capital of said corporation which was applied to
such redemption of said Sixteen thousand three hundred and twenty (16,320)
preferred shares was One Million Six Hundred and Thirty-two Thousand Dollars
($1,632,000.)
That the capital of the corporation is hereby reduced by the amount of
capital which was applied to such redemption, to-wit, One Million Six Hundred
and Thirty-two Thousand Dollars ($1,632,000), which amount is the same as the
amount of capital represented by the shares so redeemed.
THIRD: That the assets of the corporation remaining after such redemption
are sufficient to pay any debts of the corporation, the payment of which has not
been otherwise provided for.
<PAGE>
IN WITNESS WHEREOF, said CHAMPION SPARK PLUG COMPANY HAS caused its
corporate seal to be affixed and this certificate to be signed by R. A.
Stranahan, its President and H. B. Speyer, its Secretary, this 7th day of
November, 1941.
CHAMPION SPARK PLUG COMPANY
By R. A. Stranahan (s)
President
By H. B. Speyer (s)
Secretary
Champion Spark Plug Company
Seal
<PAGE>
STATE OF OHIO )
) ss.
COUNTY OF LUCAS )
BE IT REMEMBERED, that on this 7th day of November, A.D. 1941, personally
came before me, John M. Robinson, a Notary Public in and for the County and
State aforesaid, R. A. Stranahan, President of Champion Spark Plug Company, a
corporation of the State of Delaware, the corporation described in and which
executed the foregoing certificate, known to me personally to be such, and he,
the said R. A. Stranahan as such President duly executed said certificate before
me and acknowledged the said certificate to be his act and deed and the act and
deed of said corporation; that the signatures of the said President and of the
Secretary of said corporation to the said foregoing certificate are in the
handwriting of the said President and Secretary of said corporation,
respectively, and that the seal affixed to said certificate is the common or
corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day
and year aforesaid.
John M. Robinson
Notary Public, Lucas County,
Notarial Seal Ohio
Lucas County, O.
<PAGE>
AGREEMENT OF MERGER
BETWEEN
MADISON SECURITIES CO.
AND
CHAMPION SPARK PLUG COMPANY.
AGREEMENT OF MERGER, dated this 14th day of December, 1938, between MADISON
SECURITIES CO., first party, and CHAMPION SPARK PLUG COMPANY, second party, both
being corporations organized and existing under the laws of the State of
Delaware.
The Certificate of Incorporation of first party, MADISON SECURITIES CO.,
was filed in the office of the Secretary of the State of Delaware on December 5,
1938, and was recorded in the office of the Recorder of Deeds for the County of
New Castle on December 5, 1938.
The Certificate of Incorporation of second party, CHAMPION SPARK PLUG
COMPANY, was filed in the office of the said Secretary of State on September 11,
1916, and was recorded in the office of said Recorder of Deeds on September 12,
1916. A Certificate of Amendment thereto was filed in the office of said
Secretary of State on April 30, 1917, and was recorded in the office of said
Recorder of Deeds on May 1, 1917; and a further Certificate of Amendment was
filed in the office of said Secretary of State on June 15, 1921, and was
recorded by said Recorder on June 20, 1921.
First party, MADISON SECURITIES CO., is authorized to issue a total of
Three Hundred Fifty-two Thousand (352,000) shares, of which One Hundred Two
Thousand (102,000) are
-1-
<PAGE>
Preferred Shares of the par value of One Hundred Dollars ($100.00) each and Two
Hundred Fifty Thousand (250,000) are common shares of the par value of Ten
Dollars ($10.00) each; and it has outstanding One Hundred Two Thousand (102,000)
Preferred Shares and One Hundred Eighty Thousand (180,000) common shares. The
capital of said first party is Twelve Million Dollars ($12,000,000.00), of which
Ten Million Two Hundred Thousand Dollars ($10,200,000.00) is preferred capital
and One Million Eight Hundred Thousand Dollars ($1,800,000.00) is common
capital.
Second party, CHAMPION SPARK PLUG COMPANY, is authorized to issue a
total of Two Hundred Thousand (200,000) shares, all of which are common shares
of the par value of Ten Dollars ($10.00) each; and it has outstanding One
Hundred Eighty-eight Thousand and Fifty (188,050) shares (including Nine Hundred
(900) treasury shares, not as yet retired). The capital of second party is One
Million Eight Hundred Eighty Thousand Five Hundred Dollars ($1,880,500.00), of
which Nine Thousand Dollars ($9,000.00) is capital in respect of said treasury
shares and One Million Eight Hundred Seventy-one Thousand Five Hundred Dollars
($1,871,500.00) is capital in respect of other outstanding shares. Of said
outstanding shares, One Hundred Sixty-nine Thousand Two Hundred (169,200) are
held and owned by first party.
The principal office of first party, MADISON SECURITIES CO., in the
State of Delaware is located at Number 100 West Tenth Street, in the City of
Wilmington, County of New Castle, and the name and address of its resident agent
is The Corporation Trust Company, 100 West Tenth Street, Wilmington, Delaware.
The principal office of second party, CHAMPION SPARK PLUG COMPANY, in the State
of Delaware is located at Delaware Trust Building, in the City of
-2-
<PAGE>
Wilmington, County of New Castle, and the name and address of its resident agent
is The Delaware Charter Guarantee & Trust Company, Delaware Trust Building,
Wilmington, Delaware.
The corporations, parties to this agreement, by and between their
respective Boards of Directors, have agreed, and hereby agree with each other,
to merge into a single corporation which shall be the first party, MADISON
SECURITIES CO., one of the constituent corporations, and that second party,
CHAMPION SPARK PLUG COMPANY, shall be merged into first party pursuant to the
General Corporation Law of the State of Delaware, (the name of first party, upon
and in such merger, to be changed to "Champion Spark Plug Company"); and do
hereby agree upon and prescribe the terms and conditions of said merger and of
carrying the same into effect as follows.
FIRST: Second party, CHAMPION SPARK PLUG COMPANY, shall be and hereby is
merged into first party, MADISON SECURITIES CO., and the separate existence of
said second party shall cease; said two corporations shall be and hereby are
merged into a single corporation which shall be the first party, which is one of
the constituent corporations and which shall be the surviving corporation.
SECOND: The name of the surviving corporation henceforth is and shall be
CHAMPION SPARK PLUG COMPANY.
THIRD: The principal office of the surviving corporation in the State of
Delaware is and shall be located at Number 100 West Tenth Street, in the city of
Wilmington, County of New Castle, and the name and address of its resident agent
are and shall be The Corporation Trust Company, Number 100 West Tenth Street,
Wilmington, Delaware.
FOURTH: The surviving corporation shall possess all the rights, privileges,
powers and franchises, as well of a public as of a private nature, and be
subject to all the restrictions, disabilities
-3-
<PAGE>
and duties of each of said corporations, parties to this agreement, and all and
singular the rights, privileges, powers and franchises of each of said
corporations, and all property, real, personal and mixed, and all debts due to
either of said corporations on whatever account, and all other things in action
of or belonging to each of said corporations shall be vested in the surviving
corporation; and all property, rights, privileges, powers and franchises, and
all and every other interest shall be as effectually the property of the
surviving corporation as they were of the respective corporations, parties to
this agreement; and the title to any real estate, whether by deed or otherwise,
under the laws of the State of Delaware, vested in either of the said
corporations, shall not revert or be in any way impaired by reason of said
merger. The rights of creditors and of liens upon the property of either of the
corporations, parties hereto, shall be preserved unimpaired, and all debts,
liabilities and obligations of second party shall henceforth attach to said
surviving corporation and may be enforced against it to the same extent as if it
had incurred or contracted them. Any action or proceeding pending by or against
either of the corporations parties hereto may be prosecuted to judgment as if
said merger had not taken place, or the surviving corporation may be substituted
in its place.
FIFTH: The nature of the business or objects or purposes to be transacted,
promoted or carried on by the surviving corporation are as follows:
(1) To manufacture, design, develop, buy or otherwise acquire, sell and
deal in spark plugs, electrical ignition devices, and any and all kinds of
electrical equipment, machinery, parts and appliances for motor vehicles, motors
and engines, and articles and supplies used or useful in connection with any of
the foregoing.
-4-
<PAGE>
(2) To manufacture, design, develop, buy or otherwise acquire, sell,
transfer, exchange or otherwise dispose of, and to invest, trade and deal in or
with goods, wares and merchandise and personal property of every kind and
description.
(3) To acquire by purchase, subscription, underwriting, participation in
syndicates, or otherwise, and to receive, hold, own, sell, exchange or otherwise
dispose of, pledge or hypothecate al kinds of shares, bonds, mortgages,
debentures, trust receipts, participation certificates, certificates of
beneficial interest, notes and other securities, obligations, contracts, choses
in action and evidences of indebtedness generally, or interests therein, of any
corporations, associations, firms, trusts, persons, governments, states,
colonies, municipalities and other organizations; to receive, collect and
dispose of interest, dividends, and income upon, of or from any of the foregoing
and any other property held or owned by it and to exercise any and all rights
and privileges of individual ownership or interest in respect of any and all
such shares or other securities or obligations, including the right to vote
thereon for any and all purposes, and to do any and all acts and things for the
preservation, protection, improvement and enhancement in value thereof, and to
guarantee the same or become surety in respect thereto, and to aid by loan,
subsidy, guarantee or otherwise, those issuing, creating or responsible for the
same.
(4) To undertake and carry out the financing, financial adjustment,
reorganization, consolidation merger and liquidation of any corporation or of
any undertaking, business, affairs or interests and to transact any business
necessary or convenient relating or incident thereto.
(5) To enter into, assist, promote, conduct, perform or participate in,
every kind of commercial, mercantile or industrial enterprise, business, or
work, contract, undertaking, venture or operation.
-5-
<PAGE>
(6) To purchase or otherwise acquire, take over, hold, sell, liquidate, or
otherwise dispose of, the real estate, plants, equipment, inventory,
merchandise, materials and other assets, shares, goodwill, rights, franchises,
patents, trade-marks and trade names and other properties of domestic or foreign
corporations, firms, associates, syndicates, individuals, and others; to
continue, alter, extend, or develop, their business, assume their liabilities,
guarantee or become surety for the performance of their obligations; reorganize
their capital, and participate in any way in their affairs; to take over as a
going concern and continue, in its own name, any business so acquired, and to
pay for any such business or properties in cash, shares, bonds, debentures,
securities, or obligations of this Corporation, or otherwise.
(7) To apply for, obtain, register, purchase, lease or otherwise acquire,
and to hold, own, use, exercise, develop, operate and introduce, and to sell,
assign, grant licenses in respect of, or otherwise dispose of, any patents and
inventions, improvements and processes used in connection with or secured under
Letters Patent of the United States or any dependency, colony or insular
possession of the United States, or of any foreign government, trade-marks and
trade names, and to acquire, use, exercise, or otherwise turn to gain licenses
in respect of any such patents, inventions, processes and the like, or any such
property rights.
(8) To purchase, hold, re-issue, sell, exchange or otherwise deal in its
own securities, including shares of its capital stock of any class, as and to
the extent now or from time to time permitted by the laws of the State of
Delaware; but nothing herein contained shall be construed as limiting or
restricting the exercise of any lawful rights or powers of the corporation in
respect of the purchase of preferred shares out of its capital, and retirement
of such shares.
-6-
<PAGE>
(9) To carry on any or all of its operations and business and to promote
its objects within the State of Delaware or elsewhere, without restrictions as
to place or amount.
The purposes specified in any clause or paragraph contained in this Article
Fifth shall be deemed to be independent purposes, and shall not be limited or
restricted by reference to or inference from the terms of any other clause or
paragraph contained in this Agreement of Merger.
SIXTH: The total number of shares of stock which the surviving corporation
(hereinafter referred to in this Article Sixth as the "corporation") shall have
authority to issue is Three Hundred Fifty-two Thousand (352,000), consisting of
One Hundred Two Thousand (102,000) Preferred Shares with a par value of One
Hundred Dollars ($100.00) each, and Two Hundred Fifty Thousand (250,000) common
shares with a par value of Ten Dollars ($10.00) each.
(1) The holders of Preferred Shares shall be entitled to receive dividends
thereon at the rate of three (3) per centum per annum, and no more, payable
periodically or in one payment, as the Board of Directors may from time to time
determine. In any calendar year said preferred dividends at said rate shall be
declared, and paid or provision for the payment thereof made, before any
dividend or other distribution shall be declared, set apart or paid on the
common shares; but said preferred dividends shall not be cumulative and if the
full amount thereof is not declared in any calendar year, the right of the
holders of Preferred Shares to receive the deficiency thereof shall lapse. After
the full preferred dividends above specified have been declared in any calendar
year and payment thereof has been made or provided for, the holders of Preferred
Shares shall not, as such, be entitled to receive or to participate in any
further or additional dividends or distributions declared, set apart or paid
during such year.
-7-
<PAGE>
(2) Preferred Shares shall be preferred as to assets as wells as to
dividends. Upon any dissolution, liquidation or winding up of the corporation,
whether voluntary or involuntary, the holders of Preferred Shares shall be
entitled to receive and be paid the sum of One Hundred Dollars ($100.00) per
share, plus an amount equal to all preferential dividends thereon, which have
been declared and remain unpaid, but no more, before any distribution shall be
made to the holders of common shares. After payment of the full preferential
amounts aforesaid, the holders of Preferred Shares shall not as such be entitled
to any other part of or participation in the assets of the corporation.
(3) The holders of Preferred Shares shall not as such have any interest,
right or participation in or to the assets or earnings of the corporation except
as hereinabove stated.
(4) The corporation may at its option to be exercised by its Board of
Directors, at any time and from time to time, redeem the whole or any part of
the Preferred Shares at a price equal to One Hundred Two Dollars ($102.00) per
share plus the amount of all preferential dividends thereon which shall have
been declared and remain unpaid on the date fixed for redemption. If at any time
less than all of the Preferred Shares outstanding shall be called for
redemption, the Board of Directors may select the shares to be redeemed by lot
or otherwise, as in their discretion they may determine. Such redemption need
not in any case be pro rata, and the Board of Directors may call for redemption
all or any part of the Preferred Shares of any holder.
Notice of any proposed redemption of Preferred Shares stating the date of
redemption and the place of payment of the redemption price shall be given by
mailing a copy of such notice at least thirty (30) days prior to the date fixed
for redemption to the holders of the shares to be redeemed at their respective
addresses as the same appear upon the books of the corporation. If such notice
of
-8-
<PAGE>
redemption shall have been duly given, and if on or before the redemption date
specified therein all funds necessary for such redemption shall have been set
aside so as to be available therefor, then, notwithstanding that any certificate
for Preferred Shares so called for redemption shall not have been surrendered
for cancellation, the shares represented thereby shall no longer be deemed
outstanding, and the right to receive dividends thereon and all other rights
with respect to such Preferred Shares so called for redemption shall forthwith
on such redemption date cease and terminate, except only the right of the
holders thereof to receive the amount payable upon redemption thereof, but
without interest.
Subject to the limitations and provisions of this Article Sixth, the Board
of Directors may prescribe the manner, terms and conditions upon which Preferred
Shares shall be called for redemption or redeemed.
SEVENTH: The surviving corporation is to have perpetual existence.
EIGHTH: The private property of the stockholders of the surviving
corporation shall not be subject to the payment of corporate debts to any extent
whatever.
NINTH: The By-Laws of first party shall continue to be the By-Laws of first
party as the surviving corporation until altered, amended or repealed according
to the provisions thereof.
TENTH: The first Board of Directors of the surviving corporation shall be
five in number, and shall consist of the individuals who are now directors of
first party, and whose names and residences are as follows:
-9-
<PAGE>
Names Residences
----- ----------
R. A. Stranahan West Central Avenue,
Box 26-B, R.F.D. 2,
Toledo, Ohio.
F. D. Stranahan Dixie Highway,
R.F.D., Perrysburg, Ohio.
Duane Stranahan 420 East 2nd Street,
Perrysburg, Ohio.
H. B. Speyer 2533 Drummond Road,
Toledo, Ohio.
E. J. Marshall 2347 Robinwood Avenue,
Toledo, Ohio.
Said persons shall continue to be directors from and after the effective
date of merger until their successors are elected in accordance with the By-
Laws. All persons who at the effective date of merger shall be executive or
administrative officers of first party shall be and remain like officers of it,
as the surviving corporation, until its Board of Directors shall otherwise
determine.
ELEVENTH: (1) The stockholders and directors of the surviving corporation
shall have power, if the By-Laws so provide, to hold their meetings either
within or without the State of Delaware, and to have one or more offices and
places of business either within or without the State of Delaware in addition to
the principal office in Delaware.
(2) Each holder of record of shares, whether preferred or common, shall be
entitled to one vote for each share standing in his name on the books of the
surviving corporation, at all meetings of stockholders and for all purposes;
subject, nevertheless, to the right of the Board of Directors to close the stock
transfer books of the surviving corporation prior to any meeting, or to fix in
advance
-10-
<PAGE>
a record date for the determination of stockholders entitled to notice of, or to
vote at, any meeting, or to consent, for any purpose.
(3) An election of directors need not be by ballot unless requested by a
stockholder entitled to vote at the election.
TWELFTH: No holder of shares of any class of the surviving corporation
(referred to in this Article as the "corporation") shall be entitled as such, as
a matter of right, to subscribe for or purchase shares of any class whatsoever
now or hereafter authorized, or to purchase or subscribe for securities
convertible into or exchangeable for shares of the corporation, or to which
shall be attached or appertain any warrants or rights entitling the holder
thereof to subscribe for or purchase shares; and the holders of shares of the
corporation, of any class, shall have only such rights of subscription or
purchase, if any, at such price or prices and upon such terms and conditions as
the Board of Directors in its discretion may from time to time determine.
THIRTEENTH: In the furtherance and not in limitation of the powers
conferred by the laws of the State of Delaware, the Board of Directors of the
surviving corporation (referred to in this Article as the "corporation") is
expressly authorized:
(1) Subject to any limitations that may be imposed by the stockholders, to
make, alter, amend and repeal by-laws of the corporation, but any by-laws made
by the Board of Directors or stockholders may be altered, amended or repealed by
the stockholders at any annual meeting, or at any special meeting, the notice
of which includes notice of such proposed alteration, amendment or repeal.
(2) To fix and determine, and to vary the amount of working capital of the
corporation; to determine whether any, and if any, what part, of its net assets
or surplus, however created or
-11-
<PAGE>
arising, shall be used or disposed of or declared in dividends or paid to
stockholders; to use and apply such net assets or surplus, or any part thereof,
at any time or from time to time, in the purchase or acquisition of shares of
any class, to such extent or amount and in such manner and upon such terms as
the Board of Directors shall deem expedient.
(3) Without the assent or vote of the stockholders, to borrow money without
limit as to amount, to authorize and issue obligations of the corporation,
secured or unsecured, upon such terms and conditions as the Board of Directors
shall deem expedient, and to authorize the mortgaging or pledging as security
therefor of any property of the corporation, real or personal, including after
acquired property.
(4) From time to time to determine whether, and to what extent, and at what
times and places, and under what conditions and regulations, accounts, books and
records of the corporation (except such as may by the Delaware Corporation Law
be specifically made open to inspection), or any of them, shall be open to the
inspection of stockholders.
FOURTEENTH: A director of the surviving corporation (referred to in this
Article as the "corporation") shall not be disqualified by his office from
dealing or contracting with the corporation as a vendor, purchaser, employee,
agent or otherwise; nor shall any transaction or contract or act of this
corporation be void or voidable, or in any way affected or invalidated, by
reason of the fact that any director or any firm of which any director is a
member, or any corporation of which any director is a shareholder or director,
is in any way interested in such transaction or contract or act, provided the
fact that such director, or such firm, or such corporation, is so interested,
shall be disclosed or shall be known to the Board of Directors or such members
thereof as shall be present at any meeting of the Board of Directors at which
action upon any such contract or transaction or act shall be taken;
-12-
<PAGE>
nor shall any such director be liable to account to the corporation for any
gains or profits realized by or from or through any such transaction or contract
or act of this corporation, by reason of the fact that he or any firm of which
he is a member, or any corporation of which he is a shareholder or director, is
interested in such transaction or contract or act; and any such director may be
counted in determining the existence of a quorum at any meeting of the Board of
Directors of the corporation which shall authorize any such contract or
transaction or act, and may vote to authorize, ratify or approve any such
contract or transaction or act, with like force and effect as if he, or any firm
of which he is a member, or any corporation of which he is a shareholder or
director, were not interested in such transaction or contract or act.
FIFTEENTH: The surviving corporation reserves the right to amend, alter,
change or repeal any provision contained in this Agreement of Merger in the
manner now or hereafter prescribed by law; and all rights conferred on officers,
directors and stockholders herein are granted subject to this reservation.
SIXTEENTH: The manner of converting the shares of each of the constituent
corporations into shares of the surviving corporation shall be as follows:
(1) The outstanding shares of preferred and common stock of first party
shall continue to be outstanding as shares of preferred and common stock of said
first party as the surviving corporation;
(2) Upon the filing of this Agreement of Merger in the office of the
Secretary of State of Delaware,
(a) the One Hundred Sixty-nine Thousand Two Hundred (169,200)
shares of stock of second party, owned and held by first party, shall
by such filing and without the necessity of further act or deed, be
-13-
<PAGE>
cancelled and extinguished; and none of them shall be exchanged for or
converted into shares of the surviving corporation;
(b) any outstanding shares of stock of second party, which are then
owned by said second party shall not be transferred nor shall any
beneficial interest therein pass to first party as the surviving
corporation, nor shall any shares of stock of said surviving corporation be
issued in exchange therefor; and any such shares of stock of second party
owned by it shall, by such filing, be cancelled, without the necessity for
further act or deed, and shall have the status of authorized but unissued
stock of the surviving corporation;
(c) each of the other outstanding shares of stock of second party
(said shares being Seventeen Thousand Nine Hundred Fifty (17,950) in
number) shall, by such filing and without the necessity of further act or
deed, be converted into, and shall constitute, one and one-tenth (1.1)
common shares of the surviving corporation; and the holders of certificates
for such outstanding shares of second party, upon surrender of such
certificates, duly endorsed, if required, shall be entitled to receive in
exchange therefor certificates for one and one tenth (1.1) common shares of
the surviving corporation for each one (1) share of stock of second party
represented by the certificates so surrendered.
(3) In order to evidence the cancellation of all the outstanding shares of
stock of second party (including any such shares which are owned by said second
party), the certificates therefor shall be surrendered and cancelled; but delay
in the surrender thereof, or in making the exchange of certificates for such
shares of second party as are converted into shares of the surviving
corporation, shall not affect such conversion or the cancellation or
extinguishment of the shares of stock of second party; and upon the filing of
this Agreement of Merger with the Secretary of State of Delaware, all of the
outstanding shares of stock of second party shall nevertheless be cancelled and
extinguished as hereinabove provided.
SEVENTEENTH: Upon and by the filing of this Agreement in the office of the
Secretary of State of Delaware, any and all agreements, contracts and other
instruments creating or evidencing
-14-
<PAGE>
any option or right of second party, CHAMPION SPARK PLUG COMPANY, to repurchase
any of its shares of stock theretofore outstanding or any other options or
rights in respect of any of its said shares shall, without the necessity of
further act or deed be modified and amended, as follows: (a) by substituting the
surviving corporation as a party thereto in place of second party; and (b) by
substituting for the shares of stock of the second party mentioned therein, the
common shares of the surviving corporation for which they have been exchanged or
into which they have been converted. All the terms and provisions of such
agreements, contracts or other instruments shall thenceforth continue in force
and apply to the said shares of the surviving corporation and reference therein
to the book value of shares shall mean the book value of the common shares of
the surviving corporation; and all options and rights of every kind created or
evidenced by such agreements, contracts or other instruments, as so modified and
amended, shall, by the filing of this Agreement of Merger, pass to, vest in, and
be deemed to be assigned to the surviving corporation; provided, however, that
nothing herein contained shall prevent any subsequent modification, amendment,
termination or extension of any one or more of such agreements, contracts or
other instruments which may be mutually agreed upon.
The By-Laws of the surviving corporation may provide, or authorize the
Board of Directors from time to time to provide, for the sale and issuance of
additional shares of stock subject to such options or rights of repurchase or
other options or rights in favor of the surviving corporation and/or
restrictions upon sale or transfer of such shares by the holder, as may be
expressed in the By-Laws or from time to time provided by the Board of
Directors.
Certificates for all shares of the surviving corporation which upon the
filing of this Agreement of Merger or at any time thereafter are subject to any
such options, rights or restrictions upon sale
-15-
<PAGE>
or transfer, may in the discretion of the surviving corporation, to be exercised
by its Board of Directors, bear a legend, notice or endorsement thereof and/or a
reference to the agreement, contract or other instrument or By-Laws creating or
evidencing the same; and all such certificates and the shares represented by
them shall be transferable only in accordance with and subject to such options,
rights and restrictions, and in such manner and under such regulations as the
By-Laws provide.
EIGHTEENTH: Unless all of the stockholders of first party and second
party, respectively, shall consent and agree in writing to the adoption of this
Agreement of Merger without a meeting, then the said Agreement shall be
submitted to the stockholders of each of said corporations at a meeting thereof,
called separately for the purpose of taking the same into consideration, notice
of which meetings shall be duly given as provided by the laws of Delaware.
-16-
<PAGE>
IN WITNESS WHEREOF, the parties to this Agreement, pursuant to authority
duly given by their respective Boards of Directors, have caused this agreement
to be executed by a majority of their respective Boards of Directors and have
caused their respective corporate seals to be hereunto affixed on the date first
above mentioned.
MADISON SECURITIES CO., First Party,
By /s/ Robert A. Stranahan
----------------------------------------
/s/ Frank Stranahan
-----------------------------------
MADISON SECURITIES CO.
(DELAWARE) /s/ Duane Stranahan
---------------------------------------
TOLEDO, OHIO
SEAL /s/ E.J. Marshall
---------------------------------------
(Majority of its Board of Directors.)
Attest:
/s/ H.B Speyer
------------------------------
Secretary.
CHAMPION SPARK PLUG COMPANY, Second Party
By /s/ Robert A. Stranahan
--------------------------------------
CHAMPION SPARK PLUG
COMPANY SEAL /s/Frank Stranahan
--------------------------------------
/s/ Duane Stranahan
--------------------------------------
/s/ M.C. Dewitt
--------------------------------------
(Majority of its Board of Directors.)
Attest:
/s/ H.B. Speyer
- --------------------------
Secretary.
-17-
<PAGE>
CERTIFICATE OF APPROVAL
BY
STOCKHOLDERS
MADISON SECURITIES CO.
(First Party)
The undersigned, Howard B. Speyer, Secretary of MADISON SECURITIES CO., a
corporation of the State of Delaware, hereby certifies, as such Secretary and
under the seal of said corporation, that the Agreement of Merger to which this
Certificate is attached, after having been first signed by a majority of the
directors of said corporation and by a majority of the directors of CHAMPION
SPARK PLUG COMPANY, second party to said Agreement, was duly adopted by the
unanimous written consent of all of the stockholders of said MADISON SECURITIES
CO., holding One Hundred Two Thousand (102,000) shares of preferred stock and
One Hundred Eighty Thousand (180,000) shares of common stock of the corporation,
the same being all of the shares issued and outstanding and entitled to vote
upon said Agreement of Merger; and that said consent is attached hereto and made
a part of the Agreement of Merger.
WITNESS my hand and the seal of said corporation this 16th day of December,
1938.
/s/ Howard B. Speyer
----------------------------------------
Secretary.
MADISON SECURITIES CO. (DELAWARE)
TOLEDO, OHIO
SEAL
-18-
<PAGE>
UNANIMOUS CONSENT OF STOCKHOLDERS
OF
MADISON SECURITIES CO.
TO
ADOPTION OF AGREEMENT OF MERGER
December 15, 1938.
The undersigned, being all of the stockholders of MADISON SECURITIES CO., a
corporation of the State of Delaware, severally owning and holding of record the
number of shares of its preferred and common stock set opposite their respective
names, hereby adopt, and consent and agree to the adoption by said corporation,
without a meeting of stockholders, of an Agreement of Merger between said
corporation and Champion Spark Plug Company, also a corporation of the State of
Delaware, which Agreement is dated the 14th day of December, 1938, and has been
adopted, entered into and signed by a majority of the directors of each of said
corporations and has been submitted to the stockholders of each of them; and the
undersigned further consent and agree to the execution of said Agreement in the
name and on behalf of said Madison Securities Co. and to the filing and
recording thereof as provided by the laws of Delaware.
IN WITNESS WHEREOF the undersigned have executed this consent on and as of
the date above stated.
-19-
<PAGE>
<TABLE>
<CAPTION>
Preferred Common
Names Shares Shares
- ----- ----------- -------
<S> <C> <C>
________________________ 120.7 213
(Robert A. Stranahan)
________________________ 256.7 453
(Frank D. Stranahan)
________________________ 3,400.0 6,000
(Duane Stranahan)
________________________ 6.8 12
(E. J. Marshall)
________________________ 6.8 12
(H. B. Speyer)
________________________ 9,350.0 16,500
(H. B. Speyer, Trustee)
________________________ 80,784.0 142,560
(Aumend & Co.)
________________________ )
(R. A. Stranahan) )
) 4,037.5 7,125
________________________ )
(F. D. Stranahan) )
As Trustee for Anna S. Friend )
________________________ )
(R. A. Stranahan) )
) 4,037.5 7,125
________________________ )
(F.D. Stranahan) )
As Trustee for Ada S. Morse ) ------- -------
Totals 102,000 180,000
</TABLE>
-20-
<PAGE>
CERTIFICATE OF APPROVAL
-----------------------
BY
--
STOCKHOLDERS
------------
OF
--
CHAMPION SPARK PLUG COMPANY
---------------------------
(Second Party)
The undersigned, Howard B. Speyer, Secretary of CHAMPION SPARK PLUG
COMPANY, a corporation of the State of Delaware, hereby certifies, as such
Secretary and under the seal of said corporation, that the Agreement of Merger
to which this Certificate is attached, after having been first signed by a
majority of the directors of said corporation and by a majority of the directors
of MADISON SECURITIES CO., first party to said Agreement, was duly adopted by
the unanimous written consent of all of the stockholders of said CHAMPION SPARK
PLUG COMPANY, holding One Hundred Eighty-Seven Thousand One Hundred Fifty
(187,150) shares of the capital stock of the corporation, the same being all of
the shares issued and outstanding and entitled to vote upon said Agreement of
Merger; and that said consent is attached hereto and made a part of the
Agreement of Merger.
WITNESS my hand and the seal of said corporation this 16th day of December,
1938.
/s/ Howard B. Speyer
-----------------------------------------
Secretary.
CHAMPION SPARK PLUG COMPANY
SEAL
-21-
<PAGE>
UNANIMOUS CONSENT OF STOCKHOLDERS
OF
CHAMPION SPARK PLUG COMPANY
TO
ADOPTION OF AGREEMENT OF MERGER
December 15, 1938.
The undersigned, being all of the stockholders of CHAMPION SPARK PLUG
COMPANY, a corporation of the State of Delaware, severally owning and holding of
record the number of its shares of stock set opposite their respective names
hereby adopt, and consent and agree to the adoption by said corporation, without
a meeting of stockholders, of an Agreement of Merger between said corporation
and Madison Securities Co., also a corporation of the State of Delaware, which
Agreement is dated the 14 day of December, 1938, and has been adopted, entered
into and signed by a majority of the directors of each of said corporations and
has been submitted to the stockholders of each of therm; and the undersigned
further consent and agree to the execution of said Agreement in the name and on
behalf of said CHAMPION SPARK PLUG COMPANY and to the filing and recording
thereof as provided by the laws of Delaware.
IN WITNESS WHEREOF the undersigned have executed this consent on and as of
the date above stated.
-22-
<PAGE>
Names Shares
----- ------
____________________________________ 500
(M.C. DeWitt)
____________________________________ 500
(M.C. DeWitt)
As Trustee for Grace DeWitt Frazer
____________________________________ 500
(M.C. DeWitt)
As Trustee for Loraine DeWitt Reekie
____________________________________ 2,100
(Effie L. DeWitt)
(Separate consent attached) 3,600
- ------------------------------------
(Josephine E. Jeffery)
____________________________________ 2,975
(Mrs. Saida K. Jeffery)
____________________________________) 625
(Benjamin A. Jeffery) )
)
____________________________________)
(B. DeWitt Jeffery) )
As Trustees )
___________________________________ 500
(Frank H. Riddle)
-23-
<PAGE>
Names Shares
----- ------
____________________________________ 750
(J.F. Barr)
____________________________________ 1,000
(Charles E. Dewar)
(Separate consent attached) 750
- ------------------------------------
(Edith E. Rohde)
____________________________________ 500
(Helen B. Marshall)
____________________________________ 2,000
(Walter Caswell)
___________________________________ 250
(Howard B. Speyer)
____________________________________ 250
(Ralph Rowland)
-24-
<PAGE>
NAMES SHARES
----- ------
____________________________________ 250
(Charles L. Corwin)
The Commerce Guardian Bank, As Trustee
under the will of Walter W. Hoffman, )
deceased, ) 800
)
By__________________________________ )
)
____________________________________ 100
(Helen Bush)
)
Madison Securities Co., )
a Delaware corporation, ) 169,200
)
By__________________________________ )
President. )
)
and by______________________________ )
-------
Secretary. )
Total Shares 187,150
-25-
<PAGE>
CONSENT OF EDITH E. ROHDE,
A STOCKHOLDER OF
CHAMPION SPARK PLUG COMPANY
TO
ADOPTION OF AGREEMENT OF MERGER.
December 15, 1938.
The undersigned, a stockholder of Champion Spark Plug Company, a
corporation of the State of Delaware, owning and holding of record the number of
its shares set opposite her signature, consents and agrees, and joins in the
unanimous consent and agreement of the stockholders of said corporation, to the
adoption by said corporation, without a meeting of stockholders, of an Agreement
of Merger between said corporation and Madison Securities Co., also a
corporation of the State of Delaware, which Agreement is dated the 14th day of
December, 1938, and has been adopted, entered into and signed by a majority of
the directors of each of said corporations and has been submitted to the
stockholders of each of them; and the undersigned further consents and agrees,
and joins in the unanimous consent and agreement of all stockholders, to the
execution of said Agreement in the name and on behalf of said Champion Spark
Plug Company and to the filing and recording thereof as provided by the laws of
Delaware.
IN WITNESS WHEREOF the undersigned has executed this consent on and as of
the date first above stated.
-26-
<PAGE>
______________________ 750 shares
(Edith E. Rohde)
CONSENT OF JOSEPHINE E. JEFFERY
A STOCKHOLDER OF
CHAMPION SPARK PLUG COMPANY
TO
ADOPTION OF AGREEMENT OF MERGER.
December 15, 1938.
The undersigned, a stockholder of Champion Spark Plug Company, a
corporation of the State of Delaware, owning and holding of record the number of
its shares set opposite her signature, consents and agrees, and joins in the
unanimous consent and agreement of the stockholders of said corporation, to the
adoption by said corporation, without a meeting of stockholders, of an Agreement
of Merger between said corporation and Madison Securities Co., also a
corporation of the State of Delaware, which Agreement is dated the 14th day of
December, 1938, and has been adopted, entered into and signed by a majority of
the directors of each of said corporations and has been submitted to the
stockholders of each of them; and the undersigned further consents and agrees,
and joins in the unanimous consent and agreement of all stockholders, to the
execution of said Agreement in the name and on behalf of said Champion Spark
Plug Company and to the filing and recording thereof as provided by the laws of
Delaware.
IN WITNESS WHEREOF the undersigned has executed this consent on and as of
the date first above stated.
__________________________ 3,600 shares
(Josephine E. Jeffery)
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<PAGE>
SIGNATURES
OF
PRESIDENTS AND SECRETARIES
OF
THE CORPORATE PARTIES.
The foregoing Agreement of Merger having been first signed by a majority of
the directors of each constituent corporation, a party thereto, and having been
duly adopted by the unanimous written consent of all of the stockholders of each
constituent corporation, holding all of the shares of each corporation issued
and outstanding and entitled to vote upon said Agreement of Merger, all in
accordance with the statutes of the State of Delaware, and that fact having been
certified on said Agreement by the Secretary of each corporate party thereto,
the President and Secretary of each corporate party thereto, do now hereby sign
the said Agreement of Merger, under the respective corporate seals of each such
corporation, by authority of the directors and stockholders thereof, as the
respective act, deed and agreement of each of said corporations on this 16th day
of December , 1938.
MADISON SECURITIES CO.,
MADISON SECURITIES CO.(DELAWARE) By /s/ Robert A. Stranahan
----------------------------
TOLEDO, OHIO SEAL President.
And by /s/ Howard B. Speyer
------------------------
Secretary.
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<PAGE>
CHAMPION SPARK PLUG COMPANY
CHAMPION SPARK PLUG COMPANY
SEAL By /s/ Robert A. Stranahan
-----------------------------
President.
And by /s/ Howard Speyer
-------------------------
Secretary.
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<PAGE>
STATE OF OHIO )
) SS.
COUNTY OF LUCAS )
BE IT REMEMBERED That on this 16th day of December 1938, before me, the
undersigned, a Notary Public in and for said county and state, personally came
Robert A. Stranahan, President of MADISON SECURITIES CO., a corporation of the
State of Delaware, who is personally known to me to be the same person whose
name is subscribed to the foregoing Agreement of Merger as such President, and
who is personally known to me to be the President of such corporation; and
acknowledged that he signed, sealed and delivered the said Agreement of Merger
as his free and voluntary act as such President and as the free and voluntary
act, deed and agreement of said corporation, viz., MADISON SECURITIES CO., for
the uses and purposes therein set forth; and further acknowledged said Agreement
of Merger to be the act, deed and agreement of said corporation by authority of
its Board of Directors, and pursuant to the unanimous written consent of all of
the stockholders of said corporation owning and holding all of its outstanding
shares of stock, preferred and common, in conformity with the statutes of the
State of Delaware.
IN WITNESS WHEREOF I have hereunto set my hand and my official seal on the
date above stated.
_________________________________
Notary Public, Lucas County, Ohio.
NOTARIAL SEAL
LUCAS COUNTY, O.
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<PAGE>
STATE OF OHIO )
) SS.
COUNTY OF LUCAS )
BE IT REMEMBERED That on this 16th day of December 1938, before me, the
undersigned, a Notary Public in and for said county and state, personally came
Robert A. Stranahan, President of CHAMPION SPARK PLUG COMPANY, a corporation of
the State of Delaware, who is personally known to me to be the same person whose
name is subscribed to the foregoing Agreement of Merger as such President, and
who is personally known to me to be the President of such corporation, and
acknowledged that he signed, sealed and delivered the said Agreement of Merger
as his free and voluntary act as such President and as the free and voluntary
act, deed and agreement of said corporation, viz., CHAMPION SPARK PLUG COMPANY,
for the uses and purposes therein set forth; and further acknowledged said
Agreement of Merger to be the act, deed and agreement of said corporation by
authority of its Board of Directors, and pursuant to the unanimous written
consent of all of the stockholders of said corporation owning and holding all of
its outstanding shares of stock, in conformity with the statutes of the State of
Delaware.
IN WITNESS WHEREOF I have hereunto set my hand and my official seal on the
date above stated.
_________________________________
Notary Public, Lucas County, Ohio.
NOTARIAL SEAL
LUCAS COUNTY, O.
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<PAGE>
CERTIFICATE OF INCORPORATION
OF
MADISON SECURITIES CO.
FIRST: The name of this corporation is MADISON SECURITIES CO.
SECOND: Its principal office or place of business in the State of Delaware
is located at No. 100 West Tenth Street in the City of Wilmington, County of New
Castle, and the name and address of its resident agent is The Corporation Trust
Company, No. 100 West Tenth Street, Wilmington, Delaware.
THIRD: The nature of the business or objects or purposes to be transacted,
promoted or carried on are:
(1) To acquire by purchase, subscription, underwriting, participation
in syndicates, or otherwise, and to receive, hold, own, sell, exchange or
otherwise dispose of, pledge or hypothecate all kinds of shares, bonds,
mortgages, debentures, trust receipts, participation certificates,
certificates of beneficial interest, notes and other securities,
obligations, contracts, chooses in action and evidences of indebtedness
generally, or interests therein, of any corporations, associations, firms,
trusts, persons, governments, states, colonies, municipalities and other
organizations; to receive, collect and dispose of interest, dividends, and
income upon, of or from any of the foregoing and any other property held or
owned by it and to exercise any and all rights and privileges of individual
ownership or interest in respect of any and all such shares or other
securities or obligations, including the right to vote thereon for any and
all purposes, and to do any and all acts and things for the preservation,
protection, improvement and enhancement in value thereof, and to guarantee
the same or become surety in respect thereto, and to aid by loan, subsidy,
guarantee or otherwise, those issuing, creating or responsible for the
same.
(2) To undertake and carry out the financing, financial adjustment,
reorganisation, consolidation, merger and liquidation of any corporation or
of any undertaking, business, affairs or interests and to transact any
business necessary or convenient relating or incident thereto.
(3) In particular, to acquire all the outstanding shares of stock of
The Madison Securities Company, a corporation of the State of Ohio, and/or
its assets,
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<PAGE>
properties and business and to that end to enter into with it, or its
shareholders, or to adopt at one time or from time to time, any plan or
plans of reorganization or liquidation of it, and/or exchanges of stock of
this corporation for stock or assets, properties or business of said The
Madison Securities Company.
(4) To enter into, assist, promote, conduct, perform, or participate
in, every kind of commercial, mercantile or industrial enterprise,
business, or work, contract, undertaking, venture or operation.
(5) To purchase or otherwise acquire, take over, hold, sell,
liquidated, or otherwise dispose of, the real estate, plants, equipment,
inventory, merchandise, materials and other assets, shares, goodwill,
rights, franchises, patents, trade-marks and trade names and other
properties of domestic or foreign corporations, firms, associates,
syndicates, individuals, and others; to continue, alter, extend, or
develop, their business, assume their liabilities, guarantee or become
surety for the performance of their obligations; reorganise their capital,
and participate in any way in their affairs; to take over as a going
concern and continue, in its own name, any business so acquired, and to pay
for any such business or properties in cash, shares, bonds, debentures,
securities, or obligations of this Corporation, or otherwise.
(6) To apply for, obtain, register, purchase, lease or otherwise
acquire, and to hold, own, use, exercise, develop, operate and introduce,
and to sell, assign, grant licenses in respect of, or otherwise dispose of,
any patents and inventions, improvements and processes used in connection
with or secured under Letters Patent of the United States or any
dependency, colony or insular possession of the United States or of any
foreign government, trade-marks and trade names, and to acquire, use,
exercise, or otherwise turn to gain licenses in respect of any such
patents, inventions, processes and the like, or any such property rights.
(7) To purchase, hold, reissue, sell, exchange or otherwise deal in
its own securities, including shares of its capital stock of any class, as
and to the extent now or from time to time permitted by the laws of the
State of Delaware; but nothing herein contained shall be construed as
limiting or restricting the exercise of any lawful rights or powers of the
corporation in respect of the purchase of preferred share out of its
capital, and retirement of such shares.
(8) To carry on any or all of its operations and business and to
promote its objects within the State of Delaware or elsewhere, without
restriction as to place or amount.
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<PAGE>
The purposes specified in any clause or paragraph contained in this Article
Third shall be deemed to be independent purposes, and shall not be limited or
restricted by reference to or inference from the terms of any other clause or
paragraph of this Certificate of Incorporation.
FOURTH: The total number of shares which may be issued by the corporation
is Three Hundred Fifty-two Thousand (352,000), consisting of One Hundred Two
Thousand (102,000) Preferred Shares with a par value of One Hundred Dollars
($100.00) each, and Two Hundred Fifty Thousand (250,000) common shares with a
par value of Ten Dollars ($10.00) each.
(1) The holders of Preferred Shares shall be entitled to receive dividends
thereon at the rate of three (3) per centum per annum, and no more, payable
periodically or in one payment, as the Board of Directors may from time to time
determine. In any calendar year said preferred dividends at said rate shall be
declared, and paid or provision for the payment thereof made, before any
dividend or other distribution shall be declared, set apart or paid on the
common shares; but said preferred dividends shall not be cumulative and if the
full amount thereof is not declared in any calendar year, the right of the
holders of Preferred Shares to receive the deficiency thereof shall lapse.
After the full preferred dividends above specified have been declared in any
calendar year and payment thereof has been made or provided for, the holders of
Preferred Shares shall not, as such, be entitled to receive or to participate in
any further or additional dividends or distributions declared, set apart or paid
during each year.
(2) Preferred Shares shall be preferred as to assets as well as to
dividends. Upon any dissolution, liquidation or winding up of the corporation,
whether voluntary or involuntary, the holders of Preferred Shares shall be
entitled to receive and be paid the sum of One Hundred Dollars ($100.00) per
share, plus an amount equal to all preferential dividends thereon which have
been
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<PAGE>
declared and remain unpaid, but no more, before any distribution shall be made
to the holders of common shares. After payment of the full preferential amounts
aforesaid, the holders of Preferred Shares shall not as such be entitled to any
other part of or participation in the assets of the corporation.
(3) The holders of Preferred Shares shall not as such have any interest,
right or participation in or to the assets or earnings of the corporation except
as hereinabove stated.
(4) The corporation may at its option to be exercised by its Board of
Directors, at any time and from time to time, redeem the whole or any part of
the Preferred Shares at a price equal to One Hundred Two Dollars ($102.00) per
share plus the amount of all preferential dividends thereon which shall have
been declared and remain unpaid on the date fixed for redemption. If at any
time less than all of the Preferred Shares outstanding shall be called for
redemption, the Board of Directors may select the shares to be redeemed by lot
or otherwise, as in their discretion they may determine. Such redemption need
not in any case be pro rata, and the Board of Directors may call for redemption
all or any part of the Preferred Shares of any holder.
Notice of any proposed redemption of Preferred Shares stating the date of
redemption and the place of payment of the redemption price shall be given by
mailing a copy of such notice at least thirty (30) days prior to the date fixed
for redemption to the holders of the shares to be redeemed at their respective
addresses as the same appear upon the books of the corporation. If such notice
of redemption shall have been duly given, and if on or before the redemption
date specified therein all funds necessary for such redemption shall have been
set aside so as to be available therefor, then, notwithstanding that any
certificate for Preferred Shares so called for redemption shall not have been
surrendered for cancellation, the shares represented thereby shall no longer be
deemed outstanding,
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<PAGE>
and the right to receive dividends thereon and all other rights with respect to
such Preferred Shares so called for redemption shall forthwith on such
redemption date cease and terminate, except only the right of the holders
thereof to receive the amount payable upon redemption thereof, but without
interest.
Subject to the limitations and provisions of this ARTICLE FOURTH, the Board
of Directors may prescribe the manner, terms and conditions upon which Preferred
Shares shall be called for redemption or redeemed.
FIFTH: The amount of capital with which the corporation will commence
business is One Thousand Dollars ($1,000.00).
SIXTH: The name and place of residence of each of the incorporators are as
follows:
Names Addresses
----- ---------
L. E. Gray Wilmington, Delaware
----------------------- ----------------------------------
L. H. Herman Wilmington, Delaware
----------------------- ----------------------------------
Walter Lens Wilmington, Delaware
----------------------- ----------------------------------
SEVENTH: The corporation is to have perpetual existence.
EIGHTH: The private property of the stockholders shall not be subject to
the payment of corporate debts to any extent whatever.
NINTH: (1) The stockholders and directors of the corporation shall have
power, if the By-Laws so provide, to hold their meetings either within or
without the State of Delaware, and to have one or more offices and places of
business either within or without the State of Delaware in addition to the
principal office in Delaware.
-36-
<PAGE>
(2) Each holder of record of shares, whether preferred or common, shall be
entitled to one vote for each share standing in his name on the books of the
corporation, at all meetings of stockholders and for all purposes; subject,
nevertheless, to the right of the Board of Directors to close the stock transfer
books of the corporation prior to any meeting, or to fix in advance a record
date for the determination of stockholders entitled to notice of, or to vote at,
any meeting, or to consent, for any purpose.
(3) An election of directors need not be by ballot unless requested by a
stockholder entitled to vote at the election.
TENTH: No holder of shares of the corporation of any class shall be
entitled as such, as a matter of right, to subscribe for or purchase shares of
any class whatsoever now or hereafter authorized, or to purchase or subscribe
for securities convertible into or exchangeable for shares of the corporation,
or to which shall be attached or appertain any warrants or rights entitling the
holder thereof to subscribe for or purchase shares; and the holders of shares of
the corporation, of any class, shall have only such rights of subscription or
purchase, if any, at such price or prices and upon such terms and conditions as
the Board of Directors in its discretion may from time to time determine.
ELEVENTH: In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the Board of Directors is expressly
authorized:
(1) Subject to any limitations that may be imposed by the
stockholders, to make, alter, amend and repeal by-laws of the
corporation, but any by-laws made by the Board of Directors or
stockholders may be altered, amended or repealed by the
stockholders at any annual meeting, or at any special meeting,
the notice of which includes notice of such proposed alteration,
amendment or repeal.
(2) To fix and determine, and to vary the amount of working
capital of the corporation; to determine whether any, and if any,
what part, of its net assets or surplus, however created or
arising, shall be used or disposed of or declared in
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<PAGE>
dividends or paid to stockholders, to use and apply such net
assets or surplus, or any part thereof, at any time or from time
to time, in the purchase or acquisition of shares of any class,
to such extent or amount and in such manner and upon such terms
as the Board of Directors shall deem expedient.
(3) Without the assent or vote of the stockholders, to borrow
money without limit as to amount, to authorize and issue
obligations of the corporation, secured or unsecured, upon such
terms and conditions as the Board of Directors shall deem
expedient, and to authorize the mortgaging or pledging as
security therefor of any property of the corporation, real or
personal, including after acquired property.
(4) From time to time to determine whether and to what
extent, and at what times and places, and under what conditions
and regulations, accounts, books and records of the corporation
(except such as may by the Delaware Corporation law be
specifically made open to inspection ), or any of them, shall be
open to the inspection of stockholders.
TWELFTH: A director of this corporation shall not be disqualified by his
office from dealing or contracting with the corporation as a vendor, purchaser,
employee, agent or otherwise; nor shall any transaction or contract or act of
this corporation be void or voidable, or in any way affected or invalidated, by
reason of the fact that any director or any firm of which any director is a
member, or any corporation of which any director is a shareholder or director,
is in any way interested in such transaction or contract or act, provided the
fact that such director, or such firm, or such corporation, is so interested,
shall be disclosed or shall be known to the Board of Directors or such members
thereof as shall be present at any meeting of the Board of Directors at which
action upon any such contract or transaction or act shall be taken; nor shall
any such director be liable to account to the corporation for any gains or
profits realized by or from or through any such transaction or contract or act
of this corporation, by reason of the fact that he or any firm of which he is a
member, or any corporation of which he is a shareholder or director, is
interested in such transaction or contract or act; and any such director may be
counted in determining the existence of a quorum at any meeting
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<PAGE>
of the Board of Directors of the corporation which shall authorize any such
contract or transaction or act, and may vote to authorize, ratify or approve any
such contract or transaction or act with like force and effect as if he, or any
firm of which he is a member, or any corporation of which he is a shareholder or
director, were not interested in such transaction or contract or act.
THIRTEENTH: The corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by Law; and all rights conferred on officers,
directors and stockholders herein are granted subject to this reservation.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named,
for the purpose of forming a corporation to do business both within and without
the State of Delaware, and in pursuance of the General Corporation Law of the
State of Delaware, do make this Certificate, hereby declaring and certifying
that the facts herein stated are true; and accordingly hereto have set our
respective hands and seals this 18th day of November, 1938.
L.E. GRAY (SEAL)
----------------------------------
L.H. HERMAN (SEAL)
----------------------------------
WALTER LENZ (SEAL)
----------------------------------
In the presence of :
Harold E. Grantland
STATE OF DELAWARE )
) ss.
COUNTY OF NEW CASTLE )
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<PAGE>
Before me, a notary public in and for the county and state aforesaid,
personally appeared L. E. Gray, L. H. Herman, and Walter Lenz, all of the
incorporators in the foregoing Certificate of Incorporation, known to me
personally to be such, each of whom acknowledged the signing of the said
Certificate to be his own free act and deed, and that the facts therein stated
are truly set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this 18th
day of November, 1938.
________________________________________
Notary Public; County of New Castle
State of Delaware
Harold E. Grantland
Notary Public
Appointed Jan. 11, 1937
State of Delaware Term Two Year
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<PAGE>
EXHIBIT 3.21
BYLAWS
OF
FEDERAL-MOGUL IGNITION, INC.
ARTICLE I
Shareholders
Section 1. Annual Meeting. The annual meeting of the shareholders of
Federal-Mogul Ignition, Inc. (the "Corporation") shall be held on the fourth
Wednesday in May of each year at the time stated in the notice of meeting, for
the purpose of electing directors and for the transaction of such other business
as may be determined by the Board of Directors or as otherwise properly may come
before the meeting. If the day fixed for the annual meeting shall be a legal
holiday at the place of meeting, such meeting shall be held on the next
succeeding business day.
Section 2. Special Meetings. Special meetings of the shareholders may be called
by the Chairman of the Board, or by the President, or by the Board of Directors,
or by the holders of not less than twenty percent of all the outstanding shares
of the Corporation entitled to vote.
Section 3. Place of Meeting. The Board of Directors may designate any place
either within or without the State of Delaware as the place of meeting for any
annual or special meeting of shareholders called by the Board of Directors. If
no designation is made or if a special meeting be called otherwise than by the
Board of Directors, the place of meeting shall be the headquarters of the
Corporation in the State of Michigan.
Section 4. Notice of Meetings. Written or printed notice stating the time, place
and purposes of a meeting of shareholders shall be given not less than ten nor
more than sixty days before the date of the meeting, by mail, by or at the
direction of the Chairman of the Board, the President, the Secretary, or the
directors or persons calling the meeting, to each shareholder of record entitled
to vote at such meeting. If mailed, such notice shall be deemed to be given when
deposited in the United States mail in a sealed envelope addressed to the
shareholder at his address as it appears on the records of the Corporation, with
postage thereon prepaid.
Section 5. Adjourned Meetings. Notice need not be given of an adjourned meeting
of shareholders if the time and place thereof are announced at the meeting at
which the adjournment is taken. At the adjourned meeting only such business may
be transacted as might have been transacted at the original meeting. If after
the adjournment the Board of Directors fixes a new record date for the adjourned
meeting, a notice of the adjourned meeting shall be given to each shareholder of
record on the new record date entitled to vote at the meeting.
Section 6. Voting Lists. It shall be the duty of the officer or agent who shall
have charge of the stock transfer books for shares of the Corporation to make
and certify a complete list of the shareholders entitled to vote at a
shareholder's meeting or any adjournment thereof, arranged in alphabetical order
within each class and series, with the addresses of, and the number of shares
<PAGE>
held by, each shareholder. Such list shall be produced at the time and place of
the meeting, shall be subject to the inspection by any shareholder during the
whole time of the meeting, and shall be prima facie evidence as to who are the
shareholders entitled to examine such list or to vote in person or by proxy at
such meeting.
Section 7. Quorum. Unless a greater or lesser quorum is provided by law, a
majority of the outstanding shares of the Corporation entitled to vote,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders. The shareholders present in person or by proxy at such meeting may
continue to do business until adjournment, notwithstanding the withdrawal of
enough shareholders to leave less than a quorum. Whether or not a quorum is
present, the meeting may be adjourned by a vote of the shares present.
Section 8. Manner of Acting. The election of directors shall be determined by a
plurality of the votes thereon or their proxies. Except as otherwise provided by
law, or by the Articles of Incorporation, all other matters shall be determined
by a majority of the votes cast by the holders of shares entitled to vote
thereon or their proxies.
ARTICLE I
Directors
Section 1. General Powers. The business and affairs of the Corporation shall be
managed by its Board of Directors, except as otherwise provided by law or by the
Articles of Incorporation.
Section 2. Number, Tenure and Qualifications. The number of directors of the
Corporation shall be as determined from time to time by the Board of Directors
but shall not be less than two nor more than eleven. Each director shall hold
office for the term for which he is named or elected and until his successor
shall have been elected and qualified, or until his resignation or removal..
Section 3. Annual Meetings. The newly elected Board of Directors shall meet
immediately following the annual meeting of shareholders at the place where such
annual shareholders meeting is held for the purpose of the organization of the
Board, the election of officers, and the transactions of such other business as
may properly come before the meeting, and no notice of such meeting shall be
necessary.
Section 4. Regular Meeting. Regular meetings of the Board of Directors may be
held without notice at such times and at such places, within or without the
State of Delaware, as shall from time to time be determined by the Board.
Section 5. Special Meetings. Special Meetings of the Board of Directors may be
called by the Chairman of the Board, the President or a majority of the
directors, and shall be called at the request of any two directors. Such
meetings, if called by the Chairman of the Board, the President or by a majority
of the directors may be held at such place within or without the State of
Delaware as the Chairman of the Board, the President or as a majority of the
Board of Directors may from time to time determine. If any such special meetings
are called other than by
2
<PAGE>
the Chairman of the Board, the President or a majority of the Board of
Directors, they shall be held at the headquarters of the Corporation in the
State of Michigan unless otherwise consented to in writing by all of the
directors or unless previous nuclear attack prevents the holding of a meeting at
such place, in which case such meeting shall be held as close to such registered
office as possible.
Section 6. Notice. Notice of any special meeting of directors shall be given by
or at the direction of the Chairman of the Board, the President, the Secretary
or the directors calling the meeting by written notice delivered personally or
mailed to each director at his business address, by telegram or by facsimile. If
mailed, such notice shall be given at least four days prior to the meeting and
shall be deemed to be given when deposited in the Untied States mail in a sealed
envelope so addressed, with postage thereon prepaid. If notice be given by
telegram or facsimile, such notice shall be given at least twenty-four hours
prior to the meeting and shall be deemed to be given when the telegram is
delivered to the telegraph company or successful transmission of facsimile. Any
director may waive notice of any meeting. The attendance of a director at any
meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened. A director may participate in a meeting by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and such participation shall
constitute attendance at any meeting. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Board of Directors
need be specified in the notice or waiver of notice of such meeting.
Section 7. Quorum. A majority of the Board of Directors then in office shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors, but, if less than a majority of the directors are present at said
meeting, a majority of the directors present may adjourn the meeting from time
to time without further notice.
Section 8. Manner of Acting. The vote of the majority of directors present at
the meeting at which a quorum is present shall be the act of the Board of
Directors, unless a larger number is required by law, the Articles of
Corporation or these Bylaws.
Section 9. Vacancies. Vacancies in the Board of Directors may be filled by a
majority of the remaining members of the Board though less than a quorum. Such
vacancies may be filled for a term of office continuing only until the next
election of Directors by the Shareholders.
Section 10. Compensation. Directors as such shall not receive any stated
salaries for their services, but by resolution of the Board of Directors, adopt
by a majority of directors then in office, a fixed sum and expenses of
attendance, if any may be allowed for attendance at each meeting of the Board of
Directors; provided that nothing herein contained shall be construed to preclude
any director from serving the Corporation in any capacity other than as a
director or officer and receiving compensation therefor.
3
<PAGE>
Section 11. Committees. The Board of Directors may designate one or more
committees, each committee to consist of one or more directors, and may
designate one or more directors as alternate members of a committee to replace
an absent or disqualified member at a committee meeting. In the absence or
disqualification of a member of a committee, the members thereof present at a
meeting and not disqualified from voting, whether or not they constitute a
quorum, may by unanimous vote appoint another director to act at the meeting in
the place of such absent or disqualified member. Committees and each member
thereof shall serve at the pleasure of the Board.
To the extent provided by the resolution of the Board of Directors a committee
shall have and may exercise all powers and authority of the Board in the
management of the business and affairs of the Corporation.
ARTICLE III
Officers
Section 1. Number. The Board of Directors shall elect a Chairman of the Board, a
President, a Secretary and a Treasurer, and may elect a Vice Chairman of the
Board, a Controller, one or more Executive Vice Presidents, Vice Presidents,
Assistant Secretaries, Assistant Treasurers and such other officers and agents
as it may deem necessary for the transaction of the business of the Corporation.
No one of the said officers except the Chairman of the Board and the Vice
Chairman of the Board need be a director. Two or more of the above offices
except those of President and Vice President may be held by the same person, but
no officer shall execute, acknowledge or verify any instrument in more than one
capacity if the instrument is required by law or the Articles of Incorporation
or these Bylaws to be executed, acknowledged or verified by two or more
officers.
Section 2. Election and Term of Office. The officers of the Corporation shall be
elected annually by the Board of Directors at the first meeting of the Board of
Directors held after each annual meeting of shareholders subject to the power of
the Board of Directors to designate any office at any time and elect any person
thereto. If the election of officers shall not be held at such meeting, such
election shall be held as soon thereafter as conveniently may be. Each officer
shall hold office for the term for which he is elected and until his successor
is elected and qualified or until his resignation or removal.
Section 3. Removal and Resignations. Any officer or agent may be removed by the
Board of Directors with or without cause. An officer may resign by written
notice to the Corporation. Such resignations shall be effective upon receipt by
the Corporation or at a subsequent time specified in the notice of resignation.
Section 4. Vacancies. The Board of Directors shall have the power to fill any
vacancies in any office occurring from whatever reason.
4
<PAGE>
Section 5. Authority of Officers, Agents and Employees, Generally, Except as
otherwise provided by law, the Articles of Incorporation or these Bylaws, all
officers, agents and employees of the Corporation shall have such powers and
perform such duties as from time to time may be prescribed by the Board of
Directors, or the Chairman of the Board. However, unless specifically authorized
by resolution of the Board of Directors, a person who is not an officer of the
Corporation shall have no authority to execute on its behalf any (1) contract
for the purchase or sale of lands or buildings, (2) deed, (3) lease of lands or
buildings, (4) mortgage, (5) instrument creating any lien on the personal or
real property of the Corporation or (6) contract or other instrument not entered
into in the ordinary course of business.
Section 6. The Chairman of the Board, The Vice Chairman of the Board and the
President. In addition to the powers and duties elsewhere herein conferred or
provided for, the Chairman of the Board, the Vice Chairman of the Board and the
President shall have the following powers and duties subject to the direction
and under the supervision of the board of Directors. The Chairman of the Board
shall preside at meetings of the Board of Directors and of the shareholders. In
the absence of the Chairman of the Board, the Vice Chairman of the Board, if
such office shall be created, shall so preside. The President shall preside at
meetings of the Board of Directors and of the shareholders in the absence of the
Chairman of the Board and any Vice Chairman of the Board.
Section 7. The Secretary. In addition to the powers and duties elsewhere herein
conferred or provided for, the Secretary shall have the following powers and
duties subject to the direction and under the supervision of the Board of
Directors and the Chairman of the Board. He shall attend all meetings of the
Board and all meetings of the shareholders and act as clerk thereof and record
all votes and the minutes of all proceedings in a book to be kept for the
purpose. He shall perform like duties for all directors' committees when
required. He shall have custody of the seal of the Corporation and shall have
authority to cause such seal to be affixed to or impressed or otherwise
reproduced upon all documents the execution of which on behalf of the
Corporation shall have been dully authorized. He shall cause to be kept records
containing the names and addresses of all shareholders of the Corporation, the
number, class and series of shares held by each and the dates when they
respectively became shareholders of record thereof at the headquarters of the
Corporation or at the office of its transfer agent within or without the State
of Delaware. In general, he shall perform the duties usually incident to the
office of Secretary. At any meeting of the shareholders or Board of Directors at
which the Secretary is not present a Secretary Pro Tempore or Clerk of the
meeting may be appointed by the meeting.
Section 8. The Treasurer. In addition to the powers and duties elsewhere herein
conferred or provided for, the Treasurer shall have the following powers and
duties subject to the direction and under the control of the Board of Directors
and the Chairman of the Board. He shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation. He shall deposit all moneys
and other valuable effects in the name of and to the credit of the Corporation,
in such depositories as may be designated by the Board of Director, and, in
general, he shall perform the duties usually incident to the office of
Treasurer. If required by the Board of Directors, the Treasurer shall furnish
the corporation with a proper bond, in a sum and with one or more
5
<PAGE>
sureties satisfactory to the Board of Directors, for the faithful performance of
the duties of his office, and for the restoration to the Corporation in case of
his death, resignation, retirement or removal from office of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control and belonging to the Corporation.
Section 9. Assistant Secretaries and Assistant Treasurers. In addition to the
powers and duties elsewhere herein conferred or provided for, Assistant
Secretaries and Assistant Treasurers shall have the following powers and duties
subject to the direction and under the supervision of the Board of Directors and
the Chairman of the Board. Any Assistant Secretary or Assistant Treasurer may
act as the Secretary or Treasurer, respectively, in the case of the sickness,
disability or temporary absence of the Secretary or Treasurer, s the case may
be. In addition, any Assistant Secretary shall have the authority to cause the
seal of the Corporation to be affixed to or impressed or otherwise reproduced
upon all documents the execution of which on behalf of the Corporation shall
have been duly authorized whether or not the Secretary is sick, disabled or
absent.
ARTICLE IV
Fixing Record Date
In order to determine the shareholders entitled to notice of or to vote
at any meeting of shareholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or for the purpose of any other lawful action, the Board of Directors
may fix, in advance, a record date, which shall not be more than sixty nor less
than ten days before the date of such meeting, nor more than sixty days prior to
any other action. If no record date is fixed, the record date for determining
shareholders entitled to notice of or to vote at a meeting of shareholder shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held, and the record date for
determining shareholders for any other purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto. A determination of shareholders of record entitled to notice of or to
vote at a meeting of shareholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
ARTICLE V
Loans, Checks, Deposits, etc.
Section 1. Loans. No loans shall be contracted on behalf of the Corporation and
no evidences of indebtedness shall be issued in its name unless authorized by a
resolution of the Board of Directors. Such authority may be general or confined
to specific instances.
Section 2. Checks, Drafts, etc. All checks, drafts, or other orders for the
payment of money notes or other evidences of indebtedness issued in the name of
the Corporation shall be signed by such officers, employees, or agents of the
Corporation and in such manner as shall from time to
6
<PAGE>
time be determined by or pursuant to and in accordance with general or specific
resolutions of the Board of Directors.
Section 3. Deposits. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as the Board of Directors may select. Such
selection shall be by or pursuant to and accordance with a general or specific
resolution of the Board of Directors.
ARTICLE VI
Certificates for Shares
Section 1. Certificates for Shares. Certificates representing shares of the
Corporation shall be in such form conforming to applicable laws as may be
determined by the Board of Directors and shall be signed by or in the name of
the Corporation by the Chairman of the Board, the Vice Chairman of the Board,
the President or a Vice President and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Corporation, certifying the
number, and class and series of shares represented by such certificate. The
signatures of the officers may be facsimiles if the certificate is countersigned
by a transfer agent or registered by a registrar other than the Corporation or
its employee. In case any officer has signed or whose facsimile signature has
been places upon a certificate ceases to be such officer before such certificate
is issued it may be issued by the Corporation with the same effect as if he were
such officer at the date of issue.
Section 2. Lost Certificate. If a certificate of stock be lost or destroyed, a
new certificate of the identical tenor of the one alleged to be lost or
destroyed may be issued upon satisfactory proof of such loss or destruction,
and, if required by the Board of Directors, the giving of a bond sufficient to
indemnify the Corporation against any claim that may be made against the
Corporation on account of the alleged lost or destroyed certificate or the
issuance of such a new certificate.
Section 3. Transfer of Shares. Transfer of shares of the Corporation shall be
made only on the books of the Corporation by the registered holder thereof or by
his attorney thereunto authorized by power of attorney duly executed and filed
with the Secretary or transfer agent of the Corporation, and on surrender for
cancellation of the certificate for such shares. The person in whose name shares
stand on the books of the Corporation shall be deemed the owner thereof for all
purposes as regards the Corporation.
Section 4. Regulations. The Board of Directors may make such rules and
regulations as it may deem expedient concerning the issue, transfer and
registration of the certificates for shares. It may appoint one or more transfer
agents or registrars or both, and may require all certificates to bear the
signature of either or both.
Section 5. Elimination of Certificates for Stock. The Corporation may by
resolution of the Board of Directors eliminate certificates representing shares
of the Corporation and provide for
7
<PAGE>
such other methods of recording, noticing ownership and disclosure as may be
provided by the rules of any national securities exchange on which such shares
are listed.
ARTICLE VII
Fiscal Year
The fiscal year of the Corporation shall begin on the first day of
January in each year and end on the thirty-first day of December in each year.
ARTICLES VIII
Seal
The following shall be the design for the corporate seal of the
Corporation: two concentric rings with the words "Federal-Mogul Ignition, Inc.,
Delaware" between the circles and the words "Corporate Seal" in the center, if
deemed necessary by the Board of Directors.
ARTICLE IX
Emergency Provisions
Section 1. General. The provisions of this Article shall be operative only
during a national emergency declared by the President of the United States or
the person performing the President's functions, or in the event of a nuclear,
atomic or other attach on the United States or a disaster making it impossible
or impracticable for the Corporation to conduct its business without recourse to
the provisions of this Article. Said provisions in such event shall override all
other Bylaws of the Corporation in conflict with any provisions of this Article,
and shall remain operative so long as it remains impossible or impracticable to
continue the business of the Corporation otherwise, but thereafter shall be
inoperative; provided that all actions taken in good faith pursuant to such
provisions shall thereafter remain in full force and effect unless and until
revoked by action taken pursuant to the provisions of the Bylaws other than
those contained in this Article.
Section 2. Unavailable Directors. All directors of the Corporation who are not
available to perform their duties as directors by reason of physical or mental
incapacity or for any other reason or who are unwilling to perform their duties
or whose whereabouts are unknown shall automatically cease to be directors, with
like effect as if such persons had resigned as directors, so long as such
unavailability continues.
Section 3. Authorized Number of Directors. The authorized number of directors
shall be the number of directors remaining after eliminating those who have
ceased to be directors pursuant to Section 2 of this Article, or the minimum
number required by law, whichever number is greater.
8
<PAGE>
Section 4. Quorum. The number of directors necessary to constitute a quorum
shall be one-third of the authorized number of directors as specified in the
foregoing Section, or such other minimum number as, pursuant to the law or
lawful decree then in force, it is possible for the Bylaws of a corporation to
specify.
Section 5. Creation of Emergency Committee. In the event the number of directors
remaining after eliminating those who have ceased to be directors pursuant to
Section 2 of this Article is less than the minimum number of authorized
directors required by law, then until the appointment of additional directors to
make up such required minimum, all the powers and authorities which the Board
could by law delegate, including all powers and authorities which the Board
could delegate to a committee, shall be automatically vested in an emergency
committee, and the emergency committee shall thereafter manage the affairs of
the Corporation pursuant to such powers and authorities and shall have all other
powers and authorities as may by law or lawful decree be conferred on any person
or body of persons during a period of emergency.
Section 6. Constitution of Emergency Committee. The emergency committee shall
consist of all the directors remaining after eliminating those who have ceased
to be directors pursuant to Section 2 of this Article, provided that such
remaining directors are not less than three in number. In the event such
remaining directors are less than three in number, the emergency committee shall
consist of three persons, who shall be the remaining director or directors and
either one or two officers or employees of the Corporation, as the remaining
director or directors may in writing designate. If there is no remaining
director, the emergency committee shall consist of the three most senior
officers of the Corporation who are available to serve, and if and to the extent
that officers are not available, the most senior employees of the Corporation.
Seniority shall be determined in accordance with any designation of seniority in
the minutes of the proceedings of the Board, and in the absence of such
designation, shall be determined by rate of remuneration. In the event that
there are no remaining directors and no officers or employees of the Corporation
available, the emergency committee shall consist of three persons designated in
writing by the shareholder owning the largest number of shares of record as of
the date of the last record date.
Section 7. Powers of Emergency Committee. The emergency committee, once
appointed, shall govern its own procedures and shall have power to increase the
number of members thereof beyond the original number, and in the event of a
vacancy or vacancies therein, arising at any time, the remaining member or
members of the emergency committee shall have the power to fill such vacancy or
vacancies. In the event at any time after its appointment all members of the
emergency committee shall die or resign or become unavailable to act for any
reason whatsoever, a new emergency committee shall be appointed in accordance
with the foregoing provisions of this Article.
Section 8. Directors Becoming Available. Any person who has ceased to be a
director pursuant to the provisions of Section 2 of this Article and who
thereafter becomes available to serve as a director shall automatically become a
member of the emergency committee.
9
<PAGE>
Section 9. Election of Board of Directors. The emergency committee shall, as
soon after its appointment as is practicable, take all requisite action to
secure the election of a Board of Directors, and upon such election all the
powers and authorities of the emergency committee shall cease.
Section 10. Termination of Emergency Committee. In the event, after the
appointment of an emergency committee, a sufficient number of persons who ceased
to be directors pursuant to Section 2 of this Article become available to serve
as directors, so that if they had not ceased to be directors as aforesaid, there
would be enough directors to constitute the minimum number of directors required
by law, then all such persons shall automatically be deemed to be reappointed as
directors and the powers and authorities of the emergency committee shall be at
an end.
ARTICLE X
Amendments
These Bylaws may be altered or new Bylaws may be made and adopted by the
affirmative vote of a majority of the Board of Directors.
10
<PAGE>
Exhibit 3.22
Articles of Incorporation
(To be submitted in duplicate by an attorney)
HONORABLE JAMES C. KIRKPATRICK
SECRETARY OF STATE
STATE OF MISSOURI
JEFFERSON CITY, MO. 65101
The undersigned natural person(s) of the age of eighteen or more for the
purpose of forming a corporation under The General and Business Corporation Law
of Missouri adopt the following Articles of Incorporation:
ARTICLE ONE
The name of the corporation is: NUMOOG, INC.
------------------------------------
ARTICLE TWO
The address, including street and number, if any, of the corporation's
initial registered office in this state is:________Barton Building, 200 South
Bemiston Avenue, St. Louis, Missouri 63105 and the name of its initial agent at
such address is: United States Corporation Company
-------------------------------------------------------------
- -------------------------------------------------------------------------------
ARTICLE THREE
The aggregate number class and par value, if any, of shares which the
corporation shall have authority to issue shall be:
One Thousand (1,000) Shares of Common Stock,
Par Value Ten Cents ($.10) each
The preferences, qualifications, limitations, restrictions, and the special
or relative rights, including convertible rights, if any, in respect of the
shares of each class are as follows:
None
<PAGE>
ARTICLE FOUR
The extent, if any, to which the preemptive right of a shareholder to
acquire additional shares is limited or denied.
None
ARTICLE FIVE
The name and place of residence of each incorporator is as follows:
Name Street City
Edward William Kerson 117 West 13th Street New York, N.Y.
ARTICLE SIX
(Designate which and complete the applicable paragraph)
[x] The number of directors to constitute the first board of directors is five
(5). Thereafter the number of directors shall be fixed by, or in the manner
provided in the by-laws. Any changes in the number will be reported to the
Secretary of State within thirty calendar days of such change.
or
[_] The umber of directors to constitute the board of directors is _________.
(The number of directors to constitute the board of directors must be stated
herein if there are to be less than three directors. The Persons to constitute
the first board of directors may, but need not, be named).
ARTICLE SEVEN
The duration of the corporation is Perpetual
<PAGE>
ARTICLE EIGHT
The corporation is formed for the following purposes:
To engage in any lawful act or activity for which corporations
may be organized under the General and Business Corporation Law
of Missouri, including, but not by way of limitation, the
manufacturing, selling, and generally dealing in automobile and
truck chassis parts, leaf and coil spring parts, and other
kindred lines, and any manufacturing business or other business
related thereto.
IN WITNESS WHEREOF, these Articles of Incorporation have been signed this
21st day of October, 1977.
/s/ Edward William Kerson
-------------------------------------
-------------------------------------
-------------------------------------
-------------------------------------
<PAGE>
STATE OF NEW YORK
------------------------------------
SS.
COUNTY OF NEW YORK
-----------------------------------
I, Howard S. Veisz , a notary public, do hereby certify that on the 21st
day of October, 1977, personally appeared before me, Edward William Kerson, who
being by me first duly sworn, declared that he is the person who signed the
foregoing document as incorporator and that the statements therein contained are
true.
/s/ Howard S. Veisz
---------------------------
My commission expires March 30 , 1978
----------------------- --
<PAGE>
ARTICLES OF MERGER
------------------
Pursuant to Section 447 of
the Revised Statutes of
Missouri, 1969, Title XXIII,
Chapter 351, as amended
----------------------------
NUMOOG, INC., a corporation formed under the laws of the State of Missouri
(the "Corporation"), in order to merge MOOG AUTOMOTIVE, INC., a corporation
formed under the laws of the State of Missouri ("Moog"), into itself, pursuant
to the provisions of Section 447 of the Revised Statutes of Missouri, 1969,
Title XXIII, Chapter 351, as amended (the "General and Business Corporation
Law"), does hereby certify as follows:
FIRST: The Corporation and Moog are hereby merged and the Corporation is
the surviving corporation.
SECOND: The Board of Directors of the Corporation, acting pursuant to
Section 340 (2) of the General and Business Corporation Law, by unanimous
written consent effective as of January 1, 1978, adopted resolutions approving
the plan of merger set forth in these Articles of Merger (the "Plan of Merger").
THIRD: The Plan of Merger was duly adopted pursuant to Section 447 of the
General and Business Corporation Law.
FOURTH: The parent corporation, the Corporation, owns 100 percent of the
outstanding shares of each class of Moog, and, accordingly, is in compliance
with the 90 percent ownership requirement of Section 447 of the General and
Business Corporation Law. The Corporation will maintain 100 percent ownership of
the outstanding shares of each class of Moog until the issuance of the
certificate of merger by the Secretary of State of Missouri.
FIFTH: The resolutions of the Board of Directors of the Corporation
approving the Plan of Merger, and the Plan of Merger set forth therein, are as
follows:
WHEREAS, the Corporation has acquired and now lawfully owns all of the
outstanding stock of Moog Automotive, Inc. ("Moog") and desires to merge
Moog into itself;
<PAGE>
2
THEREFORE, BE IT RESOLVED, that effective as of the Effective Date (as
defined herein), the Corporation merge and it does hereby merge Moog with
and into itself and does hereby assume all of the obligations of Moog; and
FURTHER RESOLVED, that the officers of the Corporation be, and they
hereby are, authorized and directed to make and execute in the name of the
Corporation and under its corporate seal, and to file in the proper public
office, Articles of Merger setting forth a copy of these resolutions, and
to take such other actions and execute and deliver such other documents as
they may deem necessary or desirable in order to give effect to these
resolutions; and
FURTHER RESOLVED, that the terms and conditions of the merger of Moog
with and into the Corporation (the "Plan of Merger") are as follows:
1. The Corporation shall be the surviving corporation, and is
hereinafter sometimes referred to as the "Surviving Corporation."
2. The date on which the merger shall become effective (the
"Effective Date") shall be the opening of business on the date on which the
Secretary of State of the State of Missouri issues the certificate of
merger.
3. As of the Effective Date, the Articles of Incorporation of the
Corporation then in effect shall be amended by deleting therefrom in its
entirety paragraph FIRST thereof and substituting therefor the following:
"The name of the Corporation is MOOG AUTOMOTIVE, INC."
The Articles of Incorporation of the Corporation, as so amended, shall
continue in full force and effect as the Articles of Incorporation of the
Surviving Corporation, until altered, amended or repealed as provided by
law.
4. As of the Effective Date, the By-Laws of the Corporation then in
effect shall be amended by deleting therefrom in its entirety paragraph 1.7
thereof and substituting therefor the following:
"1.7 'Corporation' means MOOG AUTOMOTIVE, INC."
The By-Laws of the Corporation, as so amended, shall continue in full force
and effect as the By-Laws of the Surviving Corporation, until altered,
amended or repealed as provided therein or by law.
5. The number of directors of the Surviving Corporation shall be
nine until changed as provided by the By-Laws, and the directors and
officers of Moog shall continue in office as the directors and officers of
the Surviving Corporation until their successors are duly elected and
qualified under the provisions of the By-Laws of the Surviving Corporation.
6. As of the Effective Date, each share of the capital stock of Moog
shall, by virtue of the merger provided for herein and without further
action, be cancelled, and no shares shall be exchanged therefor.
7. As of the Effective Date, each share of the common stock of the
Corporation shall, by virtue of the merger provided for herein and without
further action, be converted into and be deemed to become one share of the
common stock of the Surviving Corporation, duly and validly authorized and
issued and fully paid and nonassessable. Each holder of common stock of the
Corporation, upon presentation for surrender to the Surviving Corporation
of a certificate representing shares of such common stock, shall receive
therefrom in exchange therefor a certificate representing an equal number
of shares of the common stock of the Surviving Corporation. Each share of
the Corporation's common stock held in the Corporation's treasury at the
Effective Date shall, by virtue of the merger provided for herein and
without further action, be converted into and be deemed to become one
issued but not outstanding share of common stock of the Surviving
Corporation.
<PAGE>
3
8. As of the Effective Date, the Surviving Corporation shall possess
all of the property, rights, privileges, leases and patents, and be subject
to all of the restrictions, disabilities, duties and obligations of Moog,
without further action. The officers and directors of the Surviving
Corporation are authorized to execute all deeds, assignments and documents
of every nature that may be needed to effectuate the full and complete
transfer of ownership of the property of Moog to the Surviving Corporation.
IN WITNESS WHEREOF, these Articles of Merger have been executed in
duplicate by the Corporation this 3rd day of January, 1978.
NUMOOG, INC.
By /s/ Andrea Geisser
----------------------------------
Andrea Geisser
Vice-President
(Corporate Seal)
Attest:
/s/
- ---------------------
(Secretary)
<PAGE>
4
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 3rd day of January, 1978, before me, Edward William Kerson,
Notary Public in and for said state, personally appeared Andrea Geisser, known
to me to be the person who executed the within Articles of Merger on behalf of
said corporation and acknowledged to me that he executed the same for the
purposes therein stated.
/s/ Edward William Kerson
-----------------------------
Notary Public
EDWARD WILLIAM KERSON
Notary Public, State of New York
No. 31-4647352
Qualified in New York County
Commission Expires March 30, 1979
<PAGE>
ARTICLES OF MERGER
------------------
Pursuant to Section 447 of
the Revised Statutes of
Missouri, 1978, Title XXIII,
Chapter 351 as amended
MOOG AUTOMOTIVE, INC. (the "Corporation"), a corporation formed under the
laws of the State of Missouri, in order to merge MOOG INTERNATIONAL, INC.
("MII"), a corporation formed under the laws of the State of Missouri, and REMCO
INTERNATIONAL, INC. ("RII"), a corporation formed under the laws of the State of
Missouri, into itself, pursuant to the provisions of Section 447 of the Revised
Statutes of Missouri, 1978, Title XXIII, Chapter 351, as amended (the "General
and Business Corporation Law"), does hereby certify as follows:
FIRST: The Corporation and MII and RII are hereby merged and the
Corporation is the surviving corporation.
SECOND: The Board of Directors of the Corporation, at a regular meeting
duly called and held November 6, 1980 adopted resolutions approving the plan of
merger set forth in these Articles of Merger (the "Plan of Merger").
THIRD: The Plan of Merger was duly adopted pursuant to Section 447 of the
General and Business Corporation Law.
FOURTH: The parent corporation, the Corporation, owns 100 percent of the
outstanding shares of each class of MII and 100 percent of the outstanding
shares of each class of RII and, accordingly, is in compliance with the 90
percent ownership requirement of Section 447 of the General and Business
Corporation Law. The Corporation will maintain 100 percent ownership of the
outstanding shares of each class of MII and RII until the issuance of the
certificate of merger by the Secretary of State of Missouri.
FIFTH: The resolutions of the Board of Directors of the Corporation
approving the Plan of Merger and the Plan of Merger set forth therein are as
follows:
WHEREAS, the Corporation owns all of the outstanding stock of Moog
International, Inc. ("MII") and all of the outstanding stock of Remco
International, Inc. ("RII") and desires to merge MII and RII into itself;
THEREFORE, BE IT RESOLVED, that effective as of the Effective Date (as
defined herein) the Corporation merge and it does hereby merge MII and RII
with and into itself and does hereby assume all of the obligations of MII
and RII; and
FURTHER RESOLVED, that the officers of the Corporation be, and they
hereby are, authorized and directed to make and execute in the name of the
Corporation and under its corporate seal and to file in the proper public
office Articles of Merger setting forth a copy of these resolutions and to
take such other actions and execute and deliver such other documents as
they may deem necessary or desirable in order to give effect to these
resolutions; and
<PAGE>
FURTHER RESOLVED, that the terms and conditions of the merger of MII
and RII with and into the Corporation (the "Plan of Merger") are as
follows:
1. The Corporation shall be the surviving corporation and is
hereinafter sometimes referred to as the "Surviving Corporation."
2. The date on which the merger shall become effective (the
"Effective Date") shall be the close of business on the date on which the
Secretary of State of the Missouri issues the certificate of merger or on
December 30, 1980, whichever is later.
3. As of the Effective Date, the Articles of Incorporation of the
Corporation then in effect shall continue in full force and effect as the
Articles of Incorporation of the Surviving Corporation until altered,
amended or repealed as provided by law.
4. The By-Laws of the Corporation in effect as of the Effective Date
shall continue in full force and effect as the By-Laws of the Surviving
Corporation until altered, amended or repealed as provided therein or by
law.
5. The number of directors of the Surviving Corporation shall be
nine until changed as provided by the By-Laws and the directors and
officers of the Corporation shall continue in office as the directors and
officers of the Surviving Corporation until their successors are duly
elected and qualified under the provisions of the By-Laws of the Surviving
Corporation.
6. As of the Effective Date, each share of the capital stock of MII
and each share of the capital stock of RII shall, by virtue of the merger
provided for herein and without further action, be cancelled and no shares
shall be exchanged therefor.
7. As of the Effective Date, each share of the common stock of the
Corporation shall, by virtue of the merger and without further action, be
converted into and be deemed to become one share of the common stock of the
Surviving Corporation, duly and validly authorized and issued and fully
paid and nonassessable. Each holder of common stock of the Corporation,
upon presentation for surrender to the Surviving Corporation of a
certificate representing shares of such common stock, shall receive
therefrom in exchange therefor a certificate representing an equal number
of shares of the common stock of the Surviving Corporation. Each share of
the Corporation's common stock held in the Corporation's treasury at the
Effective Date shall, by virtue of the merger provided for herein and
without further action, be converted into and be deemed to become an issued
but not outstanding share of common stock of the Surviving Corporation.
8. As of the Effective Date, the Surviving Corporation shall possess
all of the property, rights, privileges, leases and patents and be subject
to all of the restrictions, disabilities, duties and obligations of MII and
RII without further action. The officers and directors of the Surviving
Corporation are authorized to execute all deeds, assignments and documents
of every nature that may be needed to effectuate the full and complete
transfer of ownership of the property of MII and RII to the Surviving
Corporation.
-2-
<PAGE>
IN WITNESS WHEREOF, these Articles of Merger have been executed in
duplicate by the Corporation this 10th day of December, 1980.
MOOG AUTOMOTIVE, INC.
By /s/ William Webster
-------------------------------
President
(Corporate Seal)
Attest:
/s/ Robert Scott
-----------------------------
Secretary
STATE OF MISSOURI )
) SS
COUNTY OF ST. LOUIS )
On this 10th day of December, 1980, before me, Gwendolyn K. Bailey, Notar
Public in and for said state, personally appeared William Webster, known to me
to be the person who executed the foregoing Articles of Merger on behalf of said
corporation and acknowledged to me that he executed the same for purposes
therein stated.
/s/ Gwendolyn K. Bailey
--------------------------
Notary Public
GWENDOLYN K. BAILEY
NOTARY PUBLIC, STATE OF MISSOURI
MY COMMISSION EXPIRES 6/20/84
ST. LOUIS COUNTY
-3-
<PAGE>
STATEMENT OF CHANGE OF BUSINESS OFFICE OF A REGISTERED AGENT OF A
FOREIGN OR DOMESTIC CORPORATION
(Section 351.625 or Section 351.375, Subsection 4
RSMo. Supp. 1977)
To SECRETARY OF STATE.
Jefferson City, Missouri. Charter No. 195550
The undersigned registered agent, for the purpose of changing its business
office in Missouri as provided by the provisions of "The General and Business
Corporation Act in Missouri," represents that:
1. The name of the corporation (in Missouri) is MOOG AUTOMOTIVE, INC.
2. The name of this registered agent is United States Corporation Company
3. The address, including street number, if any, of the PRESENT business
office of the registered agent is Barton Building, 200 South Bemiston Avenue,
St. Louis, MO. 63105
4. The address, including street number, if any, of the business office
of the registered agent is hereby CHANGED TO 304 East High Street, Jefferson
City, MO. 65101
5. Notice in writing of the change has been mailed by the registered
agent to the corporation named above.
6. The address of the registered office of the corporation named above
and the business office of the registered agent, as changed is identical.
<PAGE>
(THE FOLLOWING SHOULD BE EXECUTED ONLY IF THE REGISTERED AGENT IS A NATURAL
PERSON)
IN WITNESS WHEREOF, the undersigned registered agent has caused this report
to be executed this ________ day of ______________________________________,
19____.
----------------------------------
Signature of Registered Agent
STATE OF __________________ )
) ss.
COUNTY OF _________________ )
On this _____ day of _____________________________________, in the year 19_____,
before me, ____________________________________________________________, a
Notary Public in and for said state, personally appeared
__________________________________________________________________ known to me
to be the person who executed the within Statement of Change of Business Office
and acknowledged to me that _____ executed the same for the purposes therein
stated.
----------------------------------
(Notary Seal) Notary Public
My Commission Expires
________________________
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
(THE FOLLOWING SHOULD BE EXECUTED ONLY IF THE REGISTERED AGENT IS A
CORPORATION)
IN WITNESS WHEREOF, the undersigned corporation has caused this report to be
executed in its name by its PRESIDENT or VICE-PRESIDENT, attested by its
SECRETARY or ASSISTANT SECRETARY this 18th day of October, 1982.
---- ------- --
United States Corporation Company
-----------------------------------
Name of Corporation
(Corporate Seal)
(If none state none)
By s/ Daniel S. Nuter
---------------------------------
Daniel S. Nuter
Vice-President
Attest:
/s/ Catherine E. McNealy
- ------------------------------
Secretary
STATE OF New York
------------------ ) ss.
COUNTY OF New York ) ss.
----------------- )
On this 18th day of October in the year 1982, before me Ann Patalano, a
---- -------
Notary Public in and for said state, personally
appeared Daniel S. Nuter, Vice President United States Corporation
--------------- ----------------------------
Company known to me to be the person who executed the within Statement of
Change of Business Office in behalf of said corporation and acknowledged to me
that he executed the same for the purposes therein stated.
s/ Ann Patalano
---------------------------
Notary Public
(Notary Seal)
Ann Patalano
My Commission Expires Notary Public, State of New York
--------------------------------
No. 41-3030105
Qualified in Queens County
Certificate filed in New York County
Commission Expires March 30, 1983
<PAGE>
(THE FOLLOWING SHOULD BE EXECUTED ONLY IF THE REGISTERED AGENT IS A NATURAL
----
PERSON)
IN WITNESS WHEREOF, the undersigned registered agent has caused this report
to be executed this _____ day of ________________________________ __, 19____.
---------------------------------
Signature of Registered Agent
STATE OF _______________________________________ )
) ss.
COUNTY OF ______________________________________ )
On this _________ day of ___________________________, in the year 19____, before
me, _____________________________________________________________, a Notary
Public in and for said state, personally appeared _____________________________
known to me to be the person who executed the within Statement of Change of
Business Office in behalf of said corporation and acknowledged to me that _____
executed the same for the purposes therein stated.
--------------------
Notary Public
(Notary Seal)
My Commission Expires
____________________
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
(THE FOLLOWING SHOULD BE EXECUTED ONLY IF THE REGISTERED AGENT IS A
----
CORPORATION)
IN WITNESS WHEREOF, the undersigned corporation has caused this report to be
executed in its name by its PRESIDENT or VICE-PRESIDENT, attested by its
SECRETARY or ASSISTANT SECRETARY this 28th day of August , 1984.
United States Corporation Company
---------------------------------
(Corporate Seal) Name of Corporation
(If none state none)
By /s/ Daniel S. Nuter
---------------------------------
Vice-President
Attest:
- ----------------------
Secretary
STATE OF New York )
------------------------------
) ss.
COUNTY OF New York )
------------------------------
On this 28th day of August in the year 1984, before me Ann Patalano, a
Notary Public in and for said state, personally appeared Daniel S. Nuter, Vice
President United States Corporation Company known to me to be the person who
executed the within Statement of Change of Business Office in behalf of said
corporation and acknowledged to me that he executed the same for the purposes
therein stated.
/s/ Ann Patalano
--------------------------------
Notary Public
(Notary Seal)
My Commission Expires Ann Patalano
--------------------------------
Notary Public, State of New York
No. 41-3030105
Qualified in Queens County
Certificate filed in New York County
Commission Expires March 30, 1985
<PAGE>
STATEMENT OF CHANGE OF BUSINESS OFFICE OF A REGISTERED AGENT OF A
FOREIGN OR DOMESTIC CORPORATION
(Section 351.625 or Section 351.375, Subsection 4
RSMo. Supp. 1977)
To SECRETARY OF STATE. Charter No. 195550ag
Jefferson City, Missouri.
The undersigned registered agent, for the purpose of changing its business
office in Missouri as provided by the provisions of "The General and Business
Corporation Act in Missouri," represents that:
1. The name of the corporation (in Missouri) is MOOG AUTOMOTIVE, INC.
2. The name of this registered agent is United States Corporation Company
3. The address, including street number, if any, of the PRESENT business
office of the registered agent is 304 East High Street
Jefferson City, MO 65101
4. The address, including street number, if any, of the business office of
the registered agent is hereby CHANGED TO 300 B East High Street
Jefferson City, MO 65101
5. Notice in writing of the change has been mailed by the registered agent to
the corporation named above.
6. The address of the registered office of the corporation named above and the
business office of the registered agent, as changed, is identical.
<PAGE>
(THE FOLLOWING SHOULD BE EXECUTED ONLY IF THE REGISTERED AGENT IS A NATURAL
PERSON)
IN WITNESS WHEREOF, the undersigned registered agent has caused this report to
be executed this ___ day of _____________, 19__.
-----------------------------------------
Signature of Registered Agent
STATE OF _________________ )
) ss.
COUNTY OF_________________ )
On this _____ day of ______________, in the year 19__, before me,
______________________, a Notary Public in and for said state personally
appeared _______________________ known to me to be the person who executed the
within Statement of Change of Business Office and acknowledged to me that __
executed the same for the purposes therein stated.
-----------------------------------------
Notary Public
(Notary Public)
My Commission Expires _______________________
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
(THE FOLLOWING SHOULD BE EXECUTED ONLY IF THE REGISTERED AGENT IS A CORPORATION)
IN WITNESS WHEREOF, the undersigned corporation has caused this report to be
executed in its name by its PRESIDENT or VICE-PRESIDENT, attested by its
SECRETARY or ASSISTANT SECRETARY this 28th day of August, 1984.
United States Corporation Company
---------------------------------
Name of Corporation
(Corporate Seal)
(If none state none)
By /s/ Daniel S. Nuter
----------------------------------
Attest: Vice President
- -----------------------------
Secretary
STATE OF New York )
) ss.
COUNTY OF New York )
On this 28th day of August In the year 1984, before me Ann Patalano,
a Notary Public in and for said state, personally appeared
Daniel S. Nuter, Vice President United States Corporation Company
(Name) (Title) (Name of Corporation)
known to me to be the person who executed the within Statement of Change of
Business Office in behalf of said corporation and acknowledged to me that he
executed the same for the purposes therein stated.
/s/ Ann Patalano
----------------------------------
Notary Public
(Notary Seal)
My Commission Expires Ann Patalano
-----------------------
<PAGE>
Articles of Merger
PARENT SUBSIDIARY MERGER
Section 351.447 RSMo.
(To be submitted in DUPLICATE by an Attorney)
Pursuant to the provisions of the General and Business Corporation Law of
Missouri, the undersigned corporations certify that:
(1) Moog Automotive, Inc. a Missouri
--------------------------------- ------------------------------
(Name of Corporation) (State of Incorporation)
(2) Precision Universal Joint Corp. a Delaware
--------------------------------- ------------------------------
(Name of Corporation) (State of Incorporation)
(3) a
--------------------------------- ------------------------------
(Name of Corporation) (State of Incorporation)
are hereby merged and Moog Automotive, Inc.
-------------------------------
(Name of Corporation)
a Missouri corporation, is the surviving corporation.
------------------------
(State of Incorporation)
(4) On December 13, 1984 the board of directors of Moog Automotive, Inc.
----------------- -----------------------
(Name of Corporation)
by duly adopted resolution approved the plan of merger set forth in
these articles.
(5) On December 20, 1984 the board of directors of Precision
----------------- -----------
Universal Joint Corp. by duly adopted resolution approved the plan of
---------------------
(Name of Corporation)
merger set forth in these articles.
(6) On ___________________________the board of directors of________________
__________________________ by duly adopted resolution approved the
(Name of Corporation)
plan of merger set forth in these articles.
(7) This plan of merger has been adopted pursuant to Section 351.447 RSMo.
(8) The resolution of the board of directors of the parent corporation,
------
Moog Automotive, Inc. a Missouri corporation,
--------------------- ------------------------
(Name of Corporation) (State of Incorporation)
approving the plan of merger is as follows:
<PAGE>
a Missouri corporation, is in compliance with
------------------------ ---------
(State of Incorporation)
percent ownership requirement of Section 351.447 RSMo. And will maintain
at least 90 per cent ownership of each of the other corporations, party
to the merger, until the issuance of the Certificate of merger by the
secretary of the state of Missouri.
(10) PLAN OF MERGER
1. Moog Automotive, Inc. , a Missouri corporation, is
--------------------------- ------------------------
(Name of Corporation) (State of Incorporation)
the surviving corporation.
2. All of the property, rights, privileges, leases and patents of the
Precision Universal Joint Corp. , a Delaware
----------------------------------- ------------------------
(Name of Corporation) (State of Incorporation)
corporation, and
-------------------------------------------------------
(Name of Corporation)
corporation, shall become the property of the
------------------------
(State of Incorporation)
surviving corporation, which corporation, assumes all of the obligations
of the merging corporations(s). The officers and board(s) of directors
of the above named corporations are authorized to execute all deeds,
assignments, and documents of every nature which may be necessary or
appropriate to effectuate a full and complete transfer of ownership.
3. The officers and board of directors of the surviving corporation shall
continue in office until their successors are duly elected and qualified.
4. (To be completed if the parent corporation does not own all of the
outstanding shares of each of the subsidiary corporations party to the
merger.)
The consideration to be paid by the surviving corporation upon surrender
of each share of the subsidiary corporation(s) which is not owned by the
parent corporation is as follows:
5. (To be completed if the parent corporation is not the surviving
corporation.)
The outstanding shares of a
-------------------------------------
(Name of Corporation)
, the parent corporation, shall be exchanged for
------------------------
(State of Incorporation)
shares of the surviving corporation in the manner and on the basis set
forth below:
6. (To be completed if the surviving corporation is a Missouri corporation
and its name is to be changed.)
The name of the surviving corporation,
--------------------------------
is/is not changed as follows:
(11) (To be stated if the parent corporation is not the surviving corporation)
The proposed merger has been approved by receiving the affirmative vote of
at least two-thirds of the outstanding shares of the parent corporation
entitled to vote thereon at a meeting thereof duly called and held.
<PAGE>
These Articles of Merger have been executed in duplicate by the _____
corporations as of the day and year hereafter acknowledged.
Moog Automotive, Inc.
------------------------------------
(Corporate Seal) (Name of Corporation)
Attest:
/s/ John Corey by /s/ William Webster
- --------------------------- --------------------------------
(Secretary) (President)
Precision Universal Joint Corp.
----------------------------------
(Corporate Seal) (Name of Corporation)
Attest:
/s/ Alex W. Wong by /s/ William Webster
- -------------------------------- ---------------------------
(Secretary) (President)
(Corporate Seal) __________________________________
(Name of Corporation)
Attest: by _______________________________
(President)
________________________________
(Secretary)
STATE OF MISSOURI )
--------------------
) ss.
COUNTY OF ST. LOUIS )
------------------
I, GWENDOLYN K. BAILEY, a notary public, do hereby certify that on this 19th
day of December, 1984, personally appeared before me WILLIAM WEBSTER, who,
being by me first duly sworn, declared that he is the PRESIDENT of PRECISION
UNIVERSAL JOINT CORP., that he signed the foregoing document as PRESIDENT of
the corporation, and that the statements therein contained are true.
(Notarial Seal) /s/ Gwendolyn K. Bailey
--------------------------------
(Notary Public)
<PAGE>
STATE OF MISSOURI )
) ss.
COUNTY OF ST. LOUIS )
I, GWENDOLYN K. BAILEY, a notary public, do hereby certify that on this 19th
day of December, 1984, personally appeared before me WILLIAM WEBSTER, who, being
by me first duly sworn, declared that he is the PRESIDENT of PRECISION UNIVERSAL
JOINT CORP., that he signed the foregoing document as PRESIDENT of the
corporation, and that the statements therein contained are true.
(Notarial Seal) /s/ Gwendolyn K. Bailey
--------------------------------------
(Notary Public)
STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
I, LINDA F. DAUDEL, a notary public, do hereby certify that on this 20th day of
December, 1984, personally appeared before me ALEX W. WONG, who, being by me
first duly sworn, declared that he is the SECRETARY of PRECISION UNIVERSAL JOINT
CORP., that he signed the foregoing document as SECRETARY of the corporation,
and that the statements therein contained are true.
(Notarial Seal) /s/ Linda F. Daudel
--------------------------------------
(Notary Public)
<PAGE>
STATEMENT OF CHANGE OF REGISTERED AGENT
OR REGISTERED OFFICE
BY A GENERAL BUSINESS CORPORATION
OR A LIMITED PARTNERSHIP
To: Honorable Roy D. Blunt
Secretary of State
State of Missouri Charter No. 00195550
P.O. Box 778
Jefferson City, MO 65102
The undersigned corporation or limited partnership, organized and
existing under the laws of the State of Missouri for the purpose of
changing its registered agent. "The General and Business Corporation Act of
Missouri." or the "Missouri Uniform Limited Partnership Law." represents
that:
1. The name of the corporation/ltd. Partnership is
Moog Automotive, Inc.
2. The name of its PRESENT registered agent (before change) is
United States Corporation Co.
3. The name of the new registered agent is John C. Corey
4. The address, including street number, if any, of its PRESENT registered
office (before change) is
300B East High Street, Jefferson City, MO 65101
5. Its registered office (including street number, if any change is to be
made) is hereby CHANGED
6565 Wells Avenue, St. Louis MO 63133
<PAGE>
The address of its registered office and the address of the business office
of its registered agent as changed will be identical.
Such change was authorized by resolution duly adopted by the board of
directors of the corporation or by the _____ partnership.
IN WITNESS WHEREOF, the undersigned corporation or limited partnership has
caused this report to be executed in its name by its PRESIDENT or VICE PRESIDENT
of the corporation, or GENERAL PARTNER or the limited partnership, and attested
to by the assistant secretary if a corporation on the 14th day of December 1990
MOOG AUTOMOTIVE, INC.
-------------------------------------
Name of corporation or limited partnership
(CORPORATE SEAL)
If no seal, state "none"
By /s/ Larry McCurdy
-------------------------------------------
President or Vice President of corporation
or
General Partner of limited partnership
Attest:
- ----------------------------------------
Secretary or Assistant Secretary
of corporation
State of Missouri
ss.
County of St. Louis
I, Margaret Nicholson a Notary Public, do hereby certify that on the 14th
day of December 1990 personally appeared before me Larry McCurdy who declares
he/she is the President or Vice President of the corporation, or a General
Partner of the limited partnership, executing the foregoing document, and being
first duly sworn, acknowledged that he/she signed the foregoing document in the
capacity therein set forth and declared that the statements therein contained
are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year
before written.
/s/ Margaret Nicholson
-------------------------------------
Notary Public
(Notarial Seal)
My commission expires August 1, 1994
<PAGE>
STATEMENT OF CHANGE OF REGISTERED AGENT
OR REGISTERED OFFICE
Charter No. 00195550 AG
-----------------------------
The undersigned corporation or limited partnership, organized and existing under
the laws of the State of Missouri For the purpose of changing its registered
agent "The General and Business Corporation Act of Missouri," or the "Missouri
Uniform Limited Partnership Law," represents that:
(1) The name of the corporation/ltd. partnership is:
Moog Automotive, Inc.
- --------------------------------------------------------------------------------
(2) The name of its registered agent before this change is:
John C. Corey
- --------------------------------------------------------------------------------
(3) The name of new registered agent is: Glenn J. Holler
----------------------------------------
(4) The address, including street number, if any, of its registered office
before this change is:
6565 Wells Avenue, St. Louis, Missouri 63133
- --------------------------------------------------------------------------------
(5) Its registered office (including street number, if any change is to be made)
is hereby CHANGED TO:
SAME
- --------------------------------------------------------------------------------
(6) The address of its registered office and the address of the business office
of its registered agent, as changed will be identical.
(7) Such change was authorized by resolution duly adopted by the board of
directors of the corporation or by the limited partnership.
<PAGE>
IN WITNESS WHEREOF, the undersigned corporation or limited partnership has
caused this report to be executed in its name by its PRESIDENT or VICE PRESIDENT
of the corporation, or GENERAL PARTNER or the limited partnership, an attested
to by the assistant secretary if a corporation on the 9th day of April 1992.
MOOG AUTOMOTIVE, INC.
-----------------------------------------------
Name of corporation or limited partnership
(CORPORATE SEAL)
If no seal, state "none"
By /s/ L.W. McCurdy
-----------------------------------------------
President or Vice President of corporation
or
General Partner of limited partnership
Attest:
/s/ Glenn J. Holler
- --------------------------------------
Secretary or Assistant Secretary
of corporation
State of Missouri
SS
County of St. Louis
I, B.L. Burd, a Notary Public, do hereby certify that on the 9th day of
April, 1992 personally appeared before me L.W. McCurdy who declares he is the
President of the corporation, executing the foregoing document in the capacity
therein set forth and declared that the statements therein contained are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year
before written.
/s/ B.L. Burd
-----------------------------------------------
Notary Public
(Notarial Seal)
My commission expires November 27, 1995
SECRETARY OF STATE
P.O. Box 778
JEFFERSON CITY, MO 65102
<PAGE>
STATEMENT OF CHANGE OF REGISTERED AGENT
OR REGISTERED OFFICE
Charter No. 195550
-----------
The undersigned corporation or limited partnership, organized and existing under
the laws of the State of Missouri for the purpose of changing its registered
agent "The General and Business Corporation Act of Missouri" or the "Missouri
Uniform Limited Partnership Law," represents that:
(1) The name of the corporation is:
Moog Automotive, Inc.
(2) The name of its registered agent before this change is:
Glenn J. Holler
(3) The name of new registered agent is:
C T CORPORATION SYSTEM
(4) The address, including street number, if any, of its registered office
before this change is:
6565 Wells Avenue, St. Louis, Missouri 63133
(5) Its registered office (including street number, if any change is to be
made) is hereby CHANGED TO:
906 Olive Street, St. Louis, Missouri 63101
(6) The address of its registered office and the address of the business office
of its registered agent, as changed will be identical.
(7) Such change was authorized by resolution duly adopted by the board of
directors of the corporation or by the limited partnership.
<PAGE>
IN WITNESS WHEREOF, the undersigned corporation has caused this report to be
executed in its name by its VICE PRESIDENT of the corporation, and attested to
by the secretary if a corporation on the 16th day of November , 1992
MOOG AUTOMOTIVE, INC.
---------------------------------------------
Name of corporation or limited partnership
(CORPORATE SEAL)
If no seal, state "none"
By /s/ Diane K. Schumacher
---------------------------------------------
Vice President of corporation
or
D. Bradley McWilliams, Vice/President
Attest:
/s/ Diane K. Schumacher
- -----------------------------
Secretary of corporation
State of TEXAS
SS
County of HARRIS
I, Linda F. Hartdegen a Notary Public, do hereby certify that on the 16th day
of November , 1992 personally appeared before me D. Bradley McWilliams who
declares he is the Vice President of the corporation, executing the foregoing
document in the capacity therein set forth and declared that the statements
therein contained are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year
before written.
/s/ Linda F. Hartdegen
----------------------------------------
Notary Public for the State of Texas
Linda F. Hartdegen
(Notarial Seal)
My commission expires August 4, 1994
SECRETARY OF STATE
P.O. Box 778
JEFFERSON CITY, MO 65102
<PAGE>
AMENDMENT OF ARTICLES OF INCORPORATION
(To be submitted in duplicate)
Pursuant to the provisions of The General and Business Corporation Law of
Missouri, the undersigned Corporation certifies the following:
1. The present name of the Corporation is Moog Automotive, Inc. The name under
which it was originally organized was Numoog, Inc.
2. An amendment to the Corporation's Articles of Incorporation was adopted by
the shareholders on December 17, 1997
3. Article Number One is amended to read as follows:
the name of the corporation is: Moog Automotive Products, Inc.
3.a. The Amendment herein provided for shall be effective January 1, 1998.
4. ____________________________ shares outstanding 100 or such shares were
entitled to vote on such amendment. The number of outstanding shares of any
class entitled to vote thereon as a class were as follows:
Class Number of Outstanding Shares
Common 100
5. The number of shares voted for and against the amendment was as follows:
Class No. Voted For No. Voted Against
Common 100 0
6. If the amendment changed the number or par value of authorized shares
having a par value, the amount in dollars of authorized shares having a par
value as changed is:
If the amendment changed the number of authorized shares without par value,
the authorized number of shares without par value as changed and the
consideration proposed to be received for such increased authorized shares
without par value as are to be presently issued are:
7. If the amendment provides for an exchange, reclassification, or
cancellation of issued shares, or a reduction of the number of authorized
shares of any class below the number of issued shares of that class, the
following is a statement of the manner in which such reduction shall be
effected:
<PAGE>
IN WITNESS WHEREOF, the undersigned, Randall B. Ammerman
---------------------------------
President or
has executed this instrument and its
- -------------------------------------------
Karen E. Herbert has affixed its
- ----------------------------------------------------------------
Secretary or Assistant Secretary
corporate seal hereto and attested said seal on the 17th day of December
------ ----------
19 97 .
----
Place
CORPORATE SEAL
Here
(If no seal, state "None.") Moog Automotive, Inc.
---------------------------------------
Name of Corporation
ATTEST: Karen E. Herbert Randall B. Ammerman
/s/ Karen E. Herbert By /s/ Randall B. Ammerman
- -------------------------------- ------------------------------------
Secretary or Assistant Secretary President or Vice President
State of Texas
------------------------
County of Harris
-----------------------
I, Barbara W. Widra , Notary Public do hereby certify that on this
------------------------
17th day of December , 19 97 , personally appeared before me
- --------- --------------- ----
Randall B. Ammerman and Karen E. Herbert who, being by me first duly sworn,
- ------------------------------------------
declared that he is the Vice President and Assistant Secretary
--------------------------------------------------------
of Moog Automotive, Inc.
----------------------------------------------------------------------------
that he signed the foregoing documents as Vice President and Assistant
--------------------------------------
Secretary of the corporation, and that the statements therein contained are
- ----------
true.
/s/ Barbara A. Widra
--------------------------------------
Notary Public
My commission expires October 7, 2000
----------------
ARTICLES OF MERGER
-1-
<PAGE>
OF
WAGNER ELECTRIC CORPORATION
INTO
MOOG AUTOMOTIVE, INC.
The undersigned corporations, pursuant to the provisions of the General and
Business Corporation Law of Missouri as amended, hereby execute the following
articles of merger.
ARTICLE I
the names of the corporations proposing to merge and the names of the
States under the law of which such corporations are organized, are as follows:
Name of Corporation State of Incorporation
- ------------------- ----------------------
Moog Automotive, Inc. Missouri
Wagner Electric Corporation Delaware
ARTICLE II
The laws of Delaware, under which the above foreign corporation is
organized, permit such merger.
ARTICLE III
The name of the surviving corporation shall be Moog Automotive, Inc. and it
shall be governed by the laws of the State of Missouri.
ARTICLE IV
The plan of merger is as follows:
PLAN OF MERGER OF WAGNER ELECTRIC CORPORATION
INTO MOOG AUTOMOTIVE, INC.
WHEREAS, the Boards of Directors and shareholders of Wagner Electric
Corporation and Moog Automotive, Inc. have decided that it is in the best
interest of such corporations and their shareholders to merge Wagner Electric
Corporation with and into Moog Automotive, Inc.,
NOW THEREFORE, the above named corporations agree as follows:
1. Effective January 1, 1997 (the "Effective Date"), Wagner Electric
Corporation, a Delaware corporation, (Wagner Electric Corporation referred
to as the "merging corporation") shall merge into Moog Automotive, Inc., a
Missouri Corporation (the "surviving corporation").
2. All of the property, rights, privileges, leases and patents of the
merging corporation are to be transferred to and become the property of the
surviving corporation. The Officers and Boards of Directors of the above
named corporations are authorized to execute all deeds, assignments, and
documents of every nature which may be needed to effectuate a full and
complete transfer of ownership.
3. The Officers and Board of Directors of Moog Automotive, Inc. shall
continue in office until their successors are duly elected and qualified
under the provisions of the bylaws of the surviving corporation.
4. The outstanding shares of the merging corporation shall be cancelled.
-2-
<PAGE>
5. The articles of incorporation of the surviving corporation as in effect
immediately prior to the merger shall be the articles of incorporation of
the surviving corporation after the merger.
6. The state of incorporation of the surviving corporation shall be and
remain the State of Missouri.
7. The name of the surviving corporation shall be "Moog Automotive, Inc."
8. The bylaws of the surviving corporation as in effect immediately prior
to the merger shall be and constitute the bylaws of the surviving
corporation until the same shall be properly altered, amended or repealed.
9. As to each corporation participating in the merger, the designation and
number of outstanding shares of each class and series, the class or series
of shares entitled to vote on the merger and each class and series entitled
to vote on the merger as a series, are set forth below:
<TABLE>
<CAPTION>
Designation and Number of
Outstanding Shares in Each Class or Series of Share Class or Series
Name of Corporation Class or Series Entitled to Vote to Vote as a Class
- ----------------------------- -------------------------- ------------------------ ------------------
<S> <C> <C> <C>
Wagner Electric Corporation 1,078 Common Common N/A
Moog Automotive, Inc. 100 Common Common N/A
</TABLE>
10. A copy of this Plan of Merger is on file at the office of the
surviving corporation at 6565 Wells Avenue, St. Louis, Missouri 63133 and
will be furnished by the surviving corporation, on request and without
cost, to any shareholder of the merging corporation or the surviving
corporation.
11. The merging corporation and the surviving corporation shall take or
cause to be taken, all action, or do or cause to be done, all things
necessary, proper or advisable to consummate and make effective the merger.
12. If at any time the surviving corporation shall consider or be advised
that any further assignment or assurance in law is necessary or desirable
to vest in the surviving corporation the title and property or rights of
the merging corporation, the proper officers and directors of the merging
corporation shall execute and make all such proper assignments and
assurances in law and do all things necessary or proper to vest such
property or rights in the surviving corporation, and otherwise to carry out
the purposes of this Plan of Merger, and the proper officers and directors
of the surviving corporation, are fully authorized in the name of the
merging corporation, or otherwise, to take any and all such action.
ARTICLE V
(i) The Board of Directors of Moog Automotive, Inc. by unanimous written
consent dated December 16, 1996 approved the Plan of Merger set forth in
these Articles, which Plan was also approved by written consent of the sole
shareholder of Moog Automotive, Inc. dated December 16, 1996.
(ii) The Board of Directors of Wagner Electric Corporation by unanimous written
consent dated December 16, 1996 approved the Plan of Merger set forth in
these Articles, which Plan was also approved by written consent of the sole
shareholder of Wagner Electric Corporation dated December 16, 1996.
-3-
<PAGE>
ARTICLE VI
As to each corporation, the number of shares outstanding and the number of
shares entitled to vote are:
<TABLE>
<CAPTION>
Total Number of Total Number of Shares
Name of Corporation Shares Outstanding Entitled to Vote
------------------- ------------------ ----------------------
<S> <C> <C>
Moog Automotive, Inc. 100 100
Wagner Electric Corporation 1,078 1,078
</TABLE>
ARTICLE VII
As to each corporation, the number of shares voted for and against the
plan, respectively are:
<TABLE>
<CAPTION>
Total Shares Total Shares
Name of Corporation Voted For Voted Against
------------------- ------------ -------------
<S> <C> <C>
Moog Automotive, Inc. 100 -0-
Wagner Electric Corporation 1,078 -0-
</TABLE>
ARTICLE VIII
All provisions of the law of the State of Missouri and the law of the State
of Delaware applicable to the proposed merger have been complied with.
IN WITNESS WHEREOF, Moog Automotive, Inc., a corporation existing under the
laws of the State of Missouri, has caused these Articles of Merger to be
executed in its name by its Vice President, and its corporate seal to be thereto
affixed, attested by its Assistant Secretary this 19th day of December, 1996.
MOOG AUTOMOTIVE, INC.
[SEAL] /s/ Randall B. Ammerman
--------------------------------------
By: Randall B. Ammerman
Vice President
ATTEST:
/s/ Karen E. Herbert
- ----------------------------------------
By: Karen E. Herbert
Assistant Secretary
-4-
<PAGE>
IN WITNESS WHEREOF, Wagner Electric Corporation, a corporation existing under
the laws of the State of Delaware, has caused these Articles of Merger to be
executed in its name by its Vice President, and its corporate seal to be thereto
affixed, attested by its Assistant Secretary, this 19th day of December, 1996.
WAGNER ELECTRIC CORPORATION
[SEAL]
/s/ Randall B. Ammerman
------------------------------------------
By: Randall B. Ammerman
ATTEST: Vice President
/s/ Karen E. Herbert
----------------------------------
By: Karen E. Herbert
Assistant Secretary
-5-
<PAGE>
STATE OF TEXAS )
)
COUNTY OF HARRIS )
This instrument was acknowledged before me on the 19th day of December,
1996 by Randall B. Ammerman, Vice President of Moog Automotive, Inc., a Missouri
corporation, and Wagner Electric Corporation, a Delaware corporation, on behalf
of said corporations.
/s/ Diane Dover
----------------------------------------------
Notary Public in and for
Harris County, Texas
STATE OF TEXAS )
)
COUNTY OF HARRIS )
This instrument was acknowledged before me on the 19th day of December,
1996 by Randall B. Ammerman, Vice President of Moog Automotive, Inc., a Missouri
corporation, and Wagner Electric Corporation, a Delaware corporation, on behalf
of said corporations.
/s/ Diane Dover
----------------------------------------------
Notary Public in and for
Harris County, Texas
-6-
<PAGE>
ARTICLES OF MERGER
OF
AUTO COMPONENTS, INC.
D. J. T. REALTY CO.
GENERAL DRIVESHAFT CO.
M/E AUTOMOTIVE CORP.
MOOG AUTOMOTIVE GROUP, INC.
MOOG AUTOMOTIVE INVESTMENT, INC.
ROLERO-OMEGA, INC.
INTO
MOOG AUTOMOTIVE, INC.
The undersigned corporations, pursuant to the provisions of "The General
and Business Corporation Law of Missouri" as amended, hereby execute the
following articles of merger:
ARTICLE ONE
The names of the corporations proposing to merge and the names of the
States under the law of which such corporations are organized, are as follows:
Name of Corporation State of Incorporation
------------------- ----------------------
Moog Automotive, Inc. Missouri
Auto Components, Inc. Illinois
D. J. T. Realty Co. Delaware
General Driveshaft Co. Michigan
M/E Automotive Corp. Delaware
Moog Automotive Group, Inc. Delaware
Moog Automotive Investment, Inc. Delaware
Rolero-Omega, Inc. Delaware
ARTICLE TWO
The laws of Illinois, Delaware and Michigan under which the above foreign
corporations are organized, permit such merger.
<PAGE>
ARTICLE THREE
The name of the surviving corporation shall be Moog Automotive, Inc. and it
shall be governed by the laws of the State of Missouri.
ARTICLE FOUR
The plan of merger is as follows:
PLAN OF MERGER
OF
AUTO COMPONENTS, INC.
D. J. T. REALTY CO.
GENERAL DRIVESHAFT CO.
M/E AUTOMOTIVE CORP.
MOOG AUTOMOTIVE GROUP, INC.
MOOG AUTOMOTIVE INVESTMENT, INC.
ROLERO-OMEGA, INC.
INTO
MOOG AUTOMOTIVE, INC.
WHEREAS, Moog Automotive Group, Inc. owns one hundred percent of the
outstanding capital stock of Moog Automotive Investment, Inc.; Moog Automotive
Investment, Inc. owns one hundred percent of the outstanding capital stock of
Moog Automotive, Inc.; and Moog Automotive, Inc. owns one hundred percent of the
outstanding capital stock of each of Auto components, Inc., D. J. T. Realty Co.,
General Driveshaft Co., M/E Automotive Corp. and Rolero-Omega, Inc.; and
WHEREAS, the Board of Directors and shareholders of each of the above named
corporations have decided that it is in the best interests of such corporations
and their shareholders to merge with Moog Automotive, Inc., the survivor;
NOW THEREFORE, the above named corporations agree as follows:
1. Effective December 31, 1993 (the "Effective Date"), Auto Components,
Inc., an Illinois corporation, D. J. T. Realty Co., a Delaware corporation,
General Driveshaft Co., a Michigan corporation, M/E Automotive Corp., a
Delaware corporation, Moog Automotive Group, Inc., a Delaware corporation,
Moog Automotive Investment, Inc., a Delaware corporation, and Rolero-Omega,
Inc., a Delaware corporation, (the foregoing corporations referred to
collectively as the "merging corporations") shall merge into Moog
Automotive, Inc., a Missouri Corporation (the "surviving corporation").
2. All of the property, rights, privileges, leases and patents of the
merging corporations are to be transferred to and become the property of
Moog Automotive, Inc., the surviving corporation. The Officers and Board of
Directors of the above named corporations are authorized to execute all
deeds, assignments, and documents of every nature which may be needed to
effectuate a full and complete transfer of ownership.
3. The Officers and Board of Directors of Moog Automotive, Inc. shall
continue in office until their successors are duly elected and qualified
under the provisions of the bylaws of the surviving corporation.
4. a. The outstanding shares of Auto Components, Inc., D. J. T. Realty
Co., General Driveshaft Co., M/E Automotive Corp., Moog Automotive
Investment, Inc., Rolero-Omega, Inc. and Moog Automotive, Inc.
shall be cancelled.
b. The outstanding shares of Moog Automotive Group, Inc., the ultimate
parent of each of the merging corporations (other than itself) and
Moog Automotive, Inc. , shall be exchanged for shares of Moog
Automotive, Inc., the surviving corporation, on the following
basis:
-2-
<PAGE>
Each outstanding share of Common Stock, $.01 par value each, of
Moog Automotive Group, Inc. shall be exchanged for one share of
Common Stock, $.10 par value each, of Moog Automotive, Inc.
5. The articles of incorporation of the surviving corporation are not
amended.
6. The state of incorporation of the surviving corporation shall be and
remain in the State of Missouri.
7. The name of the surviving corporation shall be "Moog Automotive, Inc."
8. the bylaws of Moog Automotive, Inc. as in effect immediately prior to
the merger shall be and constitute the bylaws of the surviving corporation
until the same shall be properly altered, amended or repealed.
9. As to each corporation participating in the merger, the designation and
number of outstanding shares of each class and series, the class or series
of shares entitled to vote on the merger and each class and series entitled
to vote on the merger as a series, are set forth below:
<TABLE>
<CAPTION>
Class
Designation and or Series
Number of Outstanding Class or Series Entitled to
Shares of Each Class Of Shares Entitled Vote as
Name of Corporation or Series to Vote a Class
- ------------------- --------------------- ------------------ -----------
<S> <C> <C> <C>
Auto Components, Inc. 50,000 Common Common N/A
D. J. T. Realty Co. 15,000 Class A Common Class A Common N/A
30,000 Class B Common
General Driveshaft Co. 1,000 Common Common N/A
M/E Automotive Corp. 100 Common Common N/A
Moog Automotive Group, Inc. 100 Common Common N/A
Moog Automotive Investment, Inc. 18,600 Class A Common Class B Common N/A
20,000 Class B Common
Rolero-Omega, Inc. 15 Common Common N/A
Moog Automotive, Inc. 100 Common Common N/A
</TABLE>
10. A copy of this Plan of Merger will be furnished by the surviving
corporation, on request and without cost, to any shareholder of any of the
merging corporations or the surviving corporation.
11. Each of the merging corporations and the surviving corporation shall
take or cause to be taken, all action, or do or cause to be done, all
things necessary, proper or advisable to consummate and make effective the
merger.
12. If at any time the surviving corporation shall consider or be advised
that any further assignment or assurance in law is necessary or desirable
to vest in the surviving corporation the title and property or rights of
the merging corporations, the proper officers and directors of the merging
corporations shall execute and make all such proper assignments and
assurances in law and do all things necessary or proper to vest such
property or rights in the surviving corporation, and otherwise to carry out
the purposes of this Plan of Merger, and the proper officers and directors
of the surviving corporation are fully authorized in the name of the
merging corporations, or otherwise, to take any and all such action.
-3-
<PAGE>
ARTICLE FIVE
(i) The Board of Directors of Moog Automotive, Inc. by unanimous written
consent resolution of the members of such Board approved the Plan of
Merger set forth in these Articles, which Plan thereafter was
approved by written consent of the sole shareholder of Moog
Automotive, Inc.
(ii) The Board of Directors of Auto Components, Inc. by unanimous written
consent resolution of the members of such Board approved the Plan of
Merger set forth in these Articles, which Plan thereafter was
approved by written consent of the sole shareholder of Auto
Components, Inc.
(iii) The Board of Directors of D. J. T. Realty Co. by unanimous written
consent resolution of the members of such Board approved the Plan of
Merger set forth in these Articles, which Plan thereafter was
approved by written consent of the sole shareholder of D. J. T.
Realty Co.
(iv) The Board of Directors of General Driveshaft Co. by unanimous
written consent resolution of the members of such Board approved the
Plan of Merger set forth in these Articles, which Plan thereafter
was approved by written consent of the sole shareholder of General
Driveshaft Co.
(v) The Board of Directors of M/E Automotive Corp. by unanimous written
consent resolution of the members of such Board approved the Plan of
Merger set forth in these Articles, which Plan thereafter was
approved by written consent of the sole shareholder of M/E
Automotive Corp.
(vi) The Board of Directors of Moog Automotive Corp. Inc. by unanimous
written consent resolution of the members of such Board approved the
Plan of Merger set forth in these Articles, which Plan thereafter
was approved by written consent of the sole shareholder of Moog
Automotive Group, Inc.
(vii) The Board of Directors of Moog Automotive Investment, Inc. by
unanimous written consent resolution of the members of such Board
approved the Plan of Merger set forth in these Articles, which Plan
thereafter was approved by written consent of the sole shareholder
of Moog Automotive Investment, Inc.
(viii) The Board of Directors of Rolero-Omega, Inc. by unanimous written
consent resolution of the members of such Board approved the Plan of
Merger set forth in these Articles, which Plan thereafter was
approved by written consent of the sole shareholder of Rolero-Omega,
Inc.
ARTICLE SIX
As to each corporation, the number of shares outstanding and the number of
shares entitled to vote are:
-4-
<PAGE>
<TABLE>
<CAPTION>
Total Number
Total Number of Shares
of Shares Entitled to
Name of Corporation Outstanding Vote
------------------- ----------- -----------
<S> <C> <C>
Moog Automotive, Inc. 100 100
Auto Components, Inc. 50,000 50,000
D. J. T. Realty Co. 45,000 15,000
General Driveshaft Co. 1,000 1,000
M/E Automotive Corp. 100 100
Moog Automotive Group, Inc. 100 100
Moog Automotive Investment, Inc. 38,600 20,000
Rolero-Omega, Inc. 15 15
</TABLE>
ARTICLE SEVEN
As to each corporation, the number of shares voted for and against the
plan, respectively are:
<TABLE>
<CAPTION>
Total Shares Total Shares
Name of Corporation Voted For Voted Against
- ------------------- ------------ -------------
<S> <C> <C>
Moog Automotive, Inc. 100 - 0 -
Auto Components, Inc. 50,000 - 0 -
D. J. T. Realty Co. 15,000 - 0 -
General Driveshaft Co. 1,000 - 0 -
M/E Automotive Corp. 100 - 0 -
Moog Automotive Group, Inc. 100 - 0 -
Moog Automotive Investment, Inc. 20,000 - 0 -
Rolero-Omega, Inc. 15 - 0 -
</TABLE>
ARTICLE EIGHT
All provisions of the law of the State of Missouri and the States of
Illinois, Delaware and Michigan applicable to the proposed merger have been
complied with.
-5-
<PAGE>
IN WITNESS WHEREOF, said Moog Automotive, Inc. a corporation existing under
the laws of the State of Missouri, has caused these Articles to be executed in
its name by its Vice President, and its corporate seal to be thereto affixed,
attested by its Assistant Secretary this 22nd day of December 1993.
Moog Automotive, Inc.
/s/ D. Bradley McWilliams
--------------------------
(CORPORATE SEAL) By: D. Bradley McWilliams
Vice President
Attest:
/s/ Karen E. Herbert
- ---------------------
Assistant Secretary
IN WITNESS WHEREOF, said Auto Components, Inc., a corporation existing
under the laws of the State of Illinois, has caused these Articles to be
executed in its name by its Vice President and its corporate seal to be thereto
affixed, attested by its Assistant Secretary this 22nd day of December 1993.
Auto Components, Inc.
/s/ D. Bradley McWilliams
--------------------------
By: D. Bradley McWilliams
(CORPORATE SEAL) Vice President
Attest:
/s/ Karen E. Herbert
- ------------------------
By: Karen E. Herbert
Assistant Secretary
IN WITNESS WHEREOF, said D. J. T. Realty Co., a corporation existing under the
laws of the State of Delaware, has caused these Articles to be executed in its
name by its Vice President and its corporate seal to be thereto affixed,
attested by its Secretary this 22nd day of December 1993.
D. J. T. Realty Co.
/s/ D. Bradley McWilliams
-------------------------
(CORPORATE SEAL) By: D. Bradley McWilliams
Vice President
Attest:
/s/ Karen E. Herbert
- ------------------------
By: Karen E. Herbert
Secretary
-6-
<PAGE>
IN WITNESS WHEREOF, said General Driveshaft Co., a corporation existing
under the laws of the State of Michigan, has caused these Articles to be
executed in its name by its Vice President and its corporate seal to be thereto
affixed, attested by its Assistant Secretary this 22nd day of December 1993.
General Driveshaft Co.
/s/ D. Bradley McWilliams
-------------------------
(CORPORATE SEAL) By: D. Bradley McWilliams
Vice President
Attest:
/s/ Karen E. Herbert
- -----------------------------
By: Karen E. Herbert
Assistant Secretary
IN WITNESS WHEREOF, said Moog Automotive Investment, Inc., a corporation
existing under the laws of the State of Delaware, has caused these Articles to
be executed in its name by its President and its corporate seal to be thereto
affixed, attested by its Assistant Secretary this 22nd day of December 1993.
Moog Automotive Investment, Inc.
/s/ D. Bradley McWilliams
----------------------------
(CORPORATE SEAL) By: D. Bradley McWilliams
President
Attest:
/s/ Karen E. Herbert
- -------------------------------
By: Karen E. Herbert
Assistant Secretary
IN WITNESS WHEREOF, said Moog Automotive Group, Inc. a corporation existing
under the laws of the State of Delaware, has caused these Articles to be
executed in its name by its President and its corporate seal to be thereto
affixed, attested by its Assistant Secretary this 22nd day of December 1993.
Moog Automotive Group, Inc.
NO SEAL IN EXISTENCE
- --------------------
(CORPORATE SEAL) /s/ D. Bradley McWilliams
----------------------------
By: D. Bradley McWilliams
Attest: Vice President
/s/ Karen E. Herbert
- -------------------------------
By: Karen E Herbert
Assistant Secretary
-7-
<PAGE>
IN WITNESS WHEREOF, said Moog Automotive Investment, Inc., a corporation
existing under the laws of the State of Delaware, has caused these Articles to
be executed in its name by its President and its corporate seal to be thereto
affixed, attested by its Assistant Secretary this 22nd day of December 1993.
Moog Automotive Investment, Inc.
NO SEAL IN EXISTENCE
/s/ D. Bradley McWilliams
-----------------------------
(CORPORATE SEAL) By: D. Bradley McWilliams
Vice President
Attest:
/s/ Karen E. Herbert
- --------------------------
By: Karen E. Herbert
Assistant Secretary
IN WITNESS WHEREOF, said Rolero-Omega, Inc. a corporation existing under
the laws of the State of Delaware, has caused these Articles to be executed in
its name by its Vice President and its corporate seal to be thereto affixed,
attested by its Assistant Secretary this 22nd day of December 1993.
Rolero-Omega, Inc.
/s/ D. Bradley McWilliams
-----------------------------
(CORPORATE SEAL) By: D. Bradley McWilliams
Vice President
Attest:
/s/ Karen E. Herbert
- --------------------------
By: Karen E. Herbert
Assistant Secretary
-8-
<PAGE>
STATE OF TEXAS )
)
COUNTY OF HARRIS )
I, Diane Dover, a Notary Public, do hereby certify that on this 22nd day of
December, 1993, personally appeared before me D. Bradley McWilliams, who, being
by me first duly sworn declared that he is the Vice President of Moog
Automotive, Inc., that he signed the forgoing document as Vice President of the
corporation, and that the statements therein contained are true.
/s/ Diane Dover
---------------------
Notary Public
My Commission Expires: 8/16/96.
STATE OF TEXAS )
)
COUNTY OF HARRIS )
I, Diane Dover, a Notary Public, do hereby certify that on this 22nd day of
December, 1993, personally appeared before me D. Bradley McWilliams, who, being
by me first duly sworn declared that he is the Vice President of Auto
Components, Inc., that he signed the foregoing document as Vice President of the
corporation, and that the statements therein contained are true.
/s/ Diane Dover
---------------------
Notary Public
My Commission Expires: 8/16/96.
-9-
<PAGE>
STATE OF TEXAS )
)
COUNTY OF HARRIS )
I, Diane Dover, a Notary Public, do hereby certify that on this22nd day of
December, 1993, personally appeared before me D. Bradley McWilliams, who, being
by me first duly sworn declared that he is the Vice President of D. J. T. Realty
Co., that he signed the forgoing document as Vice President of the corporation,
and that he statements therein contained are true.
/s/ Diane Dover
-------------------
Notary Public
My Commission Expires: 8/16/96.
STATE OF TEXAS )
)
COUNTY OF HARRIS )
I, Diane Dover, a Notary Public, do hereby certify that on this 22nd day of
December, 1993, personally appeared before me D. Bradley McWilliams, who, being
by me first duly sworn declared that he is the Vice President of General
Driveshaft Co., that he signed the foregoing document as Vice President of the
corporation, and that the statements therein contained are true.
/s/ Diane Dover
---------------------
Notary Public
My Commission Expires: 8/16/96.
-10-
<PAGE>
STATE OF TEXAS )
)
COUNTY OF HARRIS )
I, Diane Dover, a Notary Public, do hereby certify that on this 22nd day of
December, 1993, personally appeared before me D. Bradley McWilliams, who, being
by me first duly sworn declared that he is the Vice President of M/E Automotive
Corp., that he signed the forgoing document as Vice President of the
corporation, and that he statements therein contained are true.
/s/ Diane Dover
-------------------
Notary Public
My Commission Expires: 8/16/96.
STATE OF TEXAS )
)
COUNTY OF HARRIS )
I, Diane Dover, a Notary Public, do hereby certify that on this 22nd day of
December, 1993, personally appeared before me D. Bradley McWilliams, who, being
by me first duly sworn declared that he is the Vice President of Moog Automotive
Group, Inc., that he signed the foregoing document as President of the
corporation, and that the statements therein contained are true.
/s/ Diane Dover
--------------------
Notary Public
My Commission Expires: 8/16/96.
-11-
<PAGE>
STATE OF TEXAS )
)
COUNTY OF HARRIS )
I, Diane Dover, a Notary Public, do hereby certify that on this 22nd day of
December, 1993, personally appeared before me D. Bradley McWilliams, who, being
by me first duly sworn declared that he is the Vice President of Moog
Automotive, Inc., that he signed the forgoing document as President of the
corporation, and that he statements therein contained are true.
/s/ Diane Dover
-----------------------------------------
Notary Public
My Commission Expires: 8/16/96.
STATE OF TEXAS )
)
COUNTY OF HARRIS )
I, Diane Dover, a Notary Public, do hereby certify that on this 22nd day of
December, 1993, personally appeared before me D. Bradley McWilliams, who, being
by me first duly sworn declared that he is the Vice President of Rolero-Omega,
Inc., that he signed the foregoing document as Vice President of the
corporation, and that the statements therein contained are true.
/s/ Diane Dover
-----------------------------------------
Notary Public
My Commission Expires: 8/16/96.
-12-
<PAGE>
Amendment of Articles of Incorporation
(To be submitted in duplicate)
Pursuant to the provisions of The General and Business Corporation Law of
Missouri, the undersigned Corporation certifies the following:
1. The present name of the Corporation is Moog Automotive Products, Inc.
______________________________________
The name under which it was originally organized was Numoog, Inc.
_________________________
2. An amendment to the Corporation's Articles of Incorporation was adopted by
the shareholders on October 20, 1998.
3. Article Number 1 is amended to read as follows:
---------
The name of the corporation shall be "Federal-Mogul Products, Inc."
<PAGE>
shares outstanding, 120
- ------------------------------- -----------------------------
shares were entitled to vote on such amendment.
The number of outstanding shares of any class entitled to vote thereon as a
class were as follows:
Class Number of Outstanding Shares
COMMON 120
5. The number of shares voted for and against the amendment was as follows:
Class No. Voted For No. Voted Against
COMMON 120
6. If the amendment changed the number or par value of authorized shares having
a par value, the amount in dollars of authorized shares having a par value as
changed is:
no change
If the amendment changed the number of authorized shares without par value,
the authorized number of shares without par value as changed and the
consideration proposed to be received for such increased authorized shares
without par value as are to be presently issued are:
no change
7. If the amendment provides for an exchange, reclassification, or cancellation
of issued shares, or a reduction of the number of authorized shares of any
class below the number of issued shares of that class, the following is a
statement of the manner in which such reduction shall be effected:
no change
(Page 2)
<PAGE>
IN WITNESS WHEREOF, the undersigned,
THOMAS W. RYAN VICE PRESIDENT has executed this instrument
- ---------------------------------------------------
and David M. Sherbin Asst. Secy. has affixed its corporate seal hereto and
------------------------------
attested said seal on the 22nd day of October, 1998
------------------------ --------------- --
Place
CORPORATE SEAL
Here
(If no seal, state "None")
Moog Automotive Products, Inc.
---------------------------------------
Name of Corporation
ATTEST:
/s/ David M. Sherbin By /s/ Thomas W. Ryan
- ------------------------------------- ---------------------------------------
Secretary or Assistant Secretary President or Vice President
State of Michigan )
-------------------------------
) ss.
County of Oakland )
------------------------------
I, SARA CARPENTER, a Notary Public, do hereby certify that on this 2nd day
of October, 1998, personally appeared before me Thomas W. Ryan and David M.
Sherbin who, being by me first duly sworn, declared that he is the Vice
President and Assistant Secretary of Moog Automotive Products, Inc., that he
signed the foregoing documents as Vice President and Assistant Secretary of the
corporation, and that the statements therein contained are true.
(Notarial Seal) /s/ Sara Carpernter
----------------------------------
Notary Public
My commission expires 12/01/01
------------
(Page 3)
<PAGE>
ARTICLES OF MERGER
(Section 351.447, RSMo)
(To be submitted in duplicate)
Pursuant to the provisions of The General and Business Corporation Law of
Missouri, the undersigned corporation certify the following:
(1) That Federal-Mogul Products, Inc. of Missouri
------------------------------------------------------- ------------
(Name of Corporation)
(2) That Federal-Mogul Redevelopment Corporation of Missouri
------------------------------------------------------- ------------
(Name of Corporation)
(3) That of
_______________________________________________________ ------------
(Name of Corporation)
are hereby merged and that the above named Federal-Mogul Products, Inc.
--------------------------------
is the surviving corporation. (Name of Corporation)
(4) That the Board of Directors of
--------------------------------------------
(Name of Corporation)
met on and by resolution adopted by a majority vote of the members of such
board approved the Plan of Merger set forth in these articles.
(5) That the Board of Directors of Federal-Mogul Products, Inc. by
unanimous written consent dated
---------------------------------------------------------------------------
(Name of Corporation)
Nov. 20, 1998 and approved the Plan of Merger set forth in these articles.
-------------
(6) That the Board of Directors of Federal-Mogul Redevelopment Corporation, by
unanimous written consent
---------------------------------------------------------------------------
(Name of Corporation)
dated Nov. 20, 1998 and approved the Plan of Merger set forth in these
articles.
(7) That this Plan of Merger has been adopted pursuant to Section 351.447,
RSMo.
(8) That the resolution of the Board of Directors of the parent corporation,
Federal-Mogul Products, Inc., approving the Plan of Merger is as follows:
See Annex A attached hereto.
(9) That the parent corporation, Federal-Mogul Products, Inc. is in compliance
with the 90 percent ownership requirement of Section 351.447, RSMo, and
will maintain at least 90 percent ownership of each of the other
corporations, party to the merger, until the issuance of the Certificate of
Merger by the Secretary of State of the State of Missouri.
(10) PLAN OF MERGER
1. Federal-Mogul Products, Inc. of Missouri
----------------------------------------------- ----------------------
is the survivor.
2. All of the property, rights, privileges, leases and patents of the
Federal-Mogul Redevelopment Corporation and ___________________________
Corporation are to be transferred to and become the property of
Federal-Mogul Products, Inc. the survivor. The officers and board of
directors of the above named corporations are authorized to execute all
deeds, assignments, and documents of every nature which may be needed
to effectuate a full and complete transfer of ownership.
<PAGE>
3. The officers and board of directors of Federal-Mogul Products, Inc. shall
continue in office until their successors are duly elected and qualified
under the provisions of the by-laws of the surviving corporation.
4. (To be completed if the parent corporation does not own all of the
outstanding shares of each of the subsidiary corporations party to the
merger.)
The consideration paid by the surviving corporation upon surrender of
each share of the subsidiary corporation(s) which is not owned by the parent
corporation is as follows:
N/A
5. (To be completed if the parent corporation is not the surviving corporation.)
a. The outstanding shares of N/A parent corporation, shall be
exchanged for shares of surviving corporation on the following basis:
b. The proposed merger has been approved by receiving the affirmative vote of
at least two-thirds of the outstanding shares of N/A,
parent corporation, entitled to vote thereon at a meeting thereof duly
called and held on
at
------------------------------- --------------------------------------.
6. It is agreed that, upon and after the issuance of a certificate of merger by
the Secretary of State of the State of Missouri:
a. The surviving corporation may be served with process in the State of
Missouri in any proceeding for the enforcement of any obligation of any
corporation organized under the laws of the State of Missouri which is a
party to the merger and in any proceeding for the enforcement of the
rights of a dissenting shareholder of any such corporation organized under
the laws of the State of Missouri against the surviving corporation;
b. The Secretary of State of the State of Missouri shall be and hereby is
irrevocably appointed as the agent of the surviving corporation to accept
service of process in any such proceeding; the address to which the
service of process in any such proceeding shall be mailed is 26555
Northwestern Highway, Southfield, Michigan 48034;
c. The surviving corporation will promptly pay to the dissenting shareholders
of any corporation organized under the laws of the State of Missouri which
is a party to the merger the amount, if any, to which they shall be
entitled under the provisions of "The General and Business Corporation Law
of Missouri" with respect to the rights of dissenting shareholders.
7. The articles of incorporation of the survivor are not amended.
8. These Articles of Merger shall become effective on December 31, 1998.
(Page 2)
<PAGE>
IN WITNESS WHEREOF, these Articles of Merger have been executed in duplicate by
the aforementioned corporation on the day and year hereafter acknowledged.
Federal-Mogul Products, Inc.
----------------------------------------
(Name of Corporation)
Corporate Seal
By /s/ Edward W. Gray, Jr.
----------------------------------------
(The President or Vice President)
Edward W. Gray, Jr., Vice President
ATTEST:
By /s/ David M. Sherbin
--------------------------------------
The Secretary or Assistant Secretary
David M. Sherbin, Assistant Secretary
Federal-Mogul Redevelopment Corporation
----------------------------------------
(Name of Corporation)
Corporate Seal
By /s/ Edward W. Gray, Jr.
---------------------------------------
(The President or Vice President)
Edward W. Gray, Jr., Vice President
ATTEST:
By /s/ David M. Sherbin
--------------------------------------
The Secretary or Assistant Secretary
David M. Sherbin, Assistant Secretary
Corporate Seal
---------------------------------------
(Name of Corporation)
By
---------------------------------------
(The President or Vice President)
ATTEST:
By
--------------------------------------
The Secretary or Assistant Secretary
State of Michigan )
-------------------------------
) ss.
County of Oakland )
------------------------------
On this 20th day of November in the year 1998 before me Jacqueline Murdock,
Notary Public in and for said state, personally appeared Edward W. Gray, Jr.,
Vice President, Federal-Mogul Products, Inc., Federal-Mogul Redevelopment Corp.
known to me to be the person who executed the within Articles of Merger in
behalf of said corporation and acknowledged to me that he executed the same for
the purposes therein stated.
(Notarial Seal) /s/ Jacqueline Murdock
---------------------------------------
Notary Public
My commission expires Jan. 24, 1999
-----------------
(Page 3)
<PAGE>
State of Michigan )
) ss.
County of Oakland )
On this 20th day of November in the year 1998, before me Jacqueline
Murdock, Notary Public in and for said state, personally appeared David Sherbin,
Assistant Secretary, Federal-Mogul Products, Inc., Federal-Mogul Redevelopment
Corp. known to me to be the person who executed the within Articles of Merger in
behalf of said corporation and acknowledged to me that he executed the same for
the purposes therein stated.
(Notarial Seal) /s/ Jacqueline Murdock
-----------------------------------------
Notary Public
My commission expires Jan. 24, 1999
-------------------
(Page 4)
<PAGE>
ANNEX A
-------
RESOLUTIONS OF THE BOARD OF DIRECTORS
OF FEDERAL-MOGUL PRODUCTS, INC. (the "Corporation")
---------------------------------------------------
WHEREAS, the Board of Directors of the Corporation has determined that it
is in the best interests of the Corporation to adopt a Plan of Merger, to effect
the merger of its wholly-owned Subsidiary, Federal-Mogul Redevelopment
Corporation, a Missouri corporation ("Subsidiary"), with and into the
Corporation, and to have the Subsidiary's separate existence cease and
terminate, and to conduct the business of Subsidiary and assume all of the
obligations of the Subsidiary (the "Merger");
NOW THEREFORE, BE IT RESOLVED, that the Merger is authorized and approved
in all respects, and the Plan of Merger, as set forth in the Articles of Merger
to be filed with the Missouri Secretary of State, is hereby adopted, authorized
and approved in all respects;
BE IT FURTHER RESOLVED, that the officers of the Corporation be, and each
(acting alone) hereby is, authorized and empowered in the name of and on behalf
of the Corporation to take or cause to be taken all such actions and to sign,
execute, verify, acknowledge, certify to, file and deliver all such instruments
and documents, as shall be in the judgment of any such officer, necessary,
desirable or appropriate in order to effectuate the Merger and to perform the
obligations of the Corporation and the subsidiary under the laws of the State of
Missouri required for the Merger, and as a result of the Merger, including but
not limited to, filing Articles of Merger with the Missouri Secretary of State
and filing any and all other documents necessary in jurisdictions of foreign
qualification; and
BE IT FURTHER RESOLVED, that any and all prior actions taken by the
officers of the Corporation or an agent or employee of the Corporation under the
direction of such officer in connection with the actions authorized in the above
resolutions hereby are ratified, confirmed, authorized and approved in all
respects.
<PAGE>
ARTICLES OF MERGER
(Section 351.447, RSMo)
(To be submitted in duplicate)
Pursuant to the provisions of The General and Business Corporation Law of
Missouri, the undersigned corporation certify the following:
(1) That Federal-Mogul Products, Inc. of Missouri
--------------------------------------------- ------------------
(Name of Corporation)
(2) That F-M Undercar, Inc. of Delaware
--------------------------------------------- ------------------
(Name of Corporation)
(3) That _______________________________________________ of ___________________
are hereby merged and that the above named Federal-Mogul Products, Inc.
--------------------------------
is the surviving corporation. (Name of Corporation)
(4) That the Board of Directors of _______________________________________
(Name of Corporation)
met on and by resolution adopted by a majority vote of the members of such
board approved the Plan of Merger set forth in these articles.
(5) That the Board of Directors of F-M Undercar, Inc.
---------------------------------------
(Name of Corporation)
Nov. 20, 1998 approved the Plan of Merger set forth in these articles.
--------------
(6) That the Board of Directors of Federal-Mogul Products, Inc.
---------------------------------------------
(Name of Corporation)
Nov. 20, 1998 approved the Plan of Merger set forth in these articles.
-------------
(7) That this Plan of Merger has been adopted pursuant to Section 351.447,
RSMo.
(8) That the resolution of the Board of Directors of the parent corporation,
Federal-Mogul Products, Inc., approving the Plan of Merger is as follows:
----------------------------
See Annex A Attached Hereto.
(9) That the parent corporation, Federal-Mogul Products, Inc.
----------------------------------------
is in compliance with the 90 percent ownership requirement of Section
351.447, RSMo, and will maintain at least 90 percent ownership of each of
the other corporations, party to the merger, until the issuance of the
Certificate of Merger by the Secretary of State of the State of Missouri.
(10) PLAN OF MERGER
1. Federal-Mogul Products, Inc. of Missouri
----------------------------------------------- --------------
is the survivor.
<PAGE>
2. All of the property, rights, privileges, leases and patents of the
F-M Undercar, Inc. Corporation and
---------------------------- -----------------------------
Corporation are to be transferred to and become the property of
Federal-Mogul Products, Inc. the survivor. The officers and board of
--------------------------------
directors of the above named corporations are authorized to execute all
deeds, assignments, and documents of every nature which may be needed to
effectuate a full and complete transfer of ownership.
3. The officers and board of directors of Federal-Mogul Products, Inc.
----------------------------------
shall continue in office until their successors are duly elected and
qualified under the provisions of the by-laws of the surviving corporation.
4. (To be completed if the parent corporation does not own all of the
outstanding shares of each of the subsidiary corporations party to the
merger.)
The consideration paid by the surviving corporation upon surrender of
each share of the subsidiary corporation(s) which is not owned by the parent
corporation is as follows:
N/A
5. (To be completed if the parent corporation is not the surviving
corporation.)
a. The outstanding share of N/A parent corporation,
---------------------------
shall be exchanged for shares of , surviving
---------------------------
corporation on the following basis:
b. The proposed merger has been approved by receiving the affirmative vote
of at least two-thirds of the outstanding shares of N/A ,
-------------------
parent corporation, entitled to vote thereon at a meeting thereof duly
called and held on at .
----------------------- ------------------------
6. It is agreed that, upon and after the issuance of a certificate of merger by
the Secretary of State of the State of Missouri:
a. The surviving corporation may be served with process in the State of
Missouri in any proceeding for the enforcement of any obligation of any
corporation organized under the laws of the State of Missouri which is a
party to the merger and in any proceeding for the enforcement of the
rights of a dissenting shareholder of any such corporation organized
under the laws of the State of Missouri against the surviving
corporation;
b. The Secretary of State of the State of Missouri shall be and hereby is
irrevocably appointed as the agent of the surviving corporation to
accept service of process in any such proceeding; the address to which
the service of process in any such proceeding shall be mailed is
26555 Northwestern Highway, Southfield, Michigan 48034 ;
---------------------------------------------------------------
c. The surviving corporation will promptly pay to the dissenting
shareholders of any corporation organized under the laws of the State of
Missouri which is a party to the merger the amount, if any, to which
they shall be entitled under the provisions of "The General and Business
Corporation Law of Missouri" with respect to the rights of dissenting
shareholders.
7. The articles of incorporation of the survivor are not amended.
8. These Articles of Merger shall become effective on December 31, 1998.
(Page 2)
<PAGE>
IN WITNESS WHEREOF, these Articles of Merger have been executed in duplicate by
the aforementioned corporation as of the day and year hereafter acknowledged.
Federal-Mogul Products, Inc.
---------------------------------------
(Name of Corporation)
Corporate Seal
By /s/ Edward W. Gray, Jr.
------------------------------------
(The President or Vice President)
Edward W. Gray, Jr., Vice President
ATTEST:
By /s/ David M. Sherbin
- ---------------------------------------
The Secretary or Assistant Secretary
David M. Sherbin, Assistant Secretary
F-M Undercar, Inc.
---------------------------------------
(Name of Corporation)
Corporate Seal
By /s/ Edward W. Gray, Jr.
------------------------------------
(The President or Vice President)
Edward W. Gray, Jr., Vice President
ATTEST:
By /s/ David M. Sherbin
------------------------------------
The Secretary or Assistant Secretary
David M. Sherbin, Assistant Secretary
Corporate Seal
---------------------------------------
(Name of Corporation)
By
------------------------------------
(The President or Vice President)
ATTEST:
By
-------------------------------------
The Secretary or Assistant Secretary
State of Michigan )
) ss.
County of Oakland )
On this 23rd day of December in the year 1998 before me Jacqueline
Murdock, Notary Public in and for said state, personally appeared
Edward W. Gray, Jr., Vice President, F-M Undercar, Federal-Mogul Products
known to me to be the person who executed the within Articles of Merger in
behalf of said corporation and acknowledged to me that he executed the same for
the purposes therein stated.
(Notarial Seal) /s/ Jacqueline Murdock
-----------------------------------
Notary Public
My commission expires Jan. 24, 1999
State of Michigan )
) ss.
County of Oakland )
(Page 3)
<PAGE>
On this 23rd day of December in the year 1998, before me Jacqueline
Murdock, Notary Public in and for said state, personally appeared David Sherbin,
Assistant Secretary, F-M Undercar, Federal-Mogul Products known to me to be the
person who executed the within Articles of Merger in behalf of said corporation
and acknowledged to me that he executed the same for the purposes therein
stated.
(Notarial Seal) /s/ Jacqueline Murdock
--------------------------------------
Notary Public
My commission expires Jan. 24, 1999
(Page 4)
<PAGE>
ANNEX A
-------
RESOLUTIONS OF THE BOARD OF DIRECTORS
OF FEDERAL-MOGUL PRODUCTS, INC. (the "Corporation")
---------------------------------------------------
WHEREAS, the Board of Directors of the Corporation has determined that it
is in the best interests of the Corporation to adopt a Plan of Merger, to effect
the merger of its wholly-owned Subsidiary, F-M Undercar, Inc., a Delaware
corporation ("Subsidiary"), with and into the Corporation, and to have the
Subsidiary's separate existence cease and terminate, and to conduct the business
of Subsidiary and assume all of the obligations of the Subsidiary (the
"Merger");
NOW THEREFORE, BE IT RESOLVED, that the Merger is authorized and approved
in all respects, and the Plan of Merger, as set forth in the Articles of Merger
to be filed with the Missouri Secretary of State, is hereby adopted, authorized
and approved in all respects;
BE IT FURTHER RESOLVED, that the officers of the Corporation be, and each
(acting alone) hereby is, authorized and empowered in the name of and on behalf
of the Corporation to take or cause to be taken all such actions and to sign,
execute, verify, acknowledge, certify to, file and deliver all such instruments
and documents, as shall be in the judgment of any such officer, necessary,
desirable or appropriate in order to effectuate the Merger and to perform the
obligations of the Corporation and the subsidiary under the laws of the States
of Missouri and Delaware required for the Merger, and as a result of the Merger,
including but not limited to, filing Articles of Merger with the Missouri
Secretary of State and a Certificate of Ownership and Merger with the Delaware
Secretary of State, and filing any and all other documents necessary in
jurisdictions of foreign qualification; and
BE IT FURTHER RESOLVED, that any and all prior actions taken by the
officers of the Corporation or an agent or employee of the Corporation under the
direction of such officer in connection with the actions authorized in the above
resolutions hereby are ratified, confirmed, authorized and approved in all
respects.
<PAGE>
Statement of Change of Business Office
of a Registered Agent
Charter No. 00195550
--------
The undersigned registered agent, for the purpose of changing its business
office in Missouri as provided by the provisions of "The General and Business
Corporation Act in Missouri," or the "Missouri Uniform Limited Partnership Law,"
represents that:
1. The name of the corporation/limited partnership is MOOG AUTOMOTIVE PRODUCTS,
INC.
2. The name of this registered agent is C T Corporation System
3. The address, including street number, if any, of the present business office
of the registered agent is 906 Olive Street, St. Louis, Missouri 63105
4. The address, including street number, if any, of the business office of the
registered agent is hereby changed to 120 South Central Avenue, Clayton,
Missouri 63105
5. Notice in writing of the change has been mailed by the registered agent to
the corporation/limited partnership named above.
6. The address of the registered office of the corporation/limited partnership
named above and the business office of the registered agent, as changed, is
identical.
<PAGE>
(The following should be executed only if the registered agent is a natural
person)
IN WITNESS WHEREOF, the undersigned registered agent has caused this report
to be executed this _____________ day of
__________________________________________________________________, 19 _____.
_________________________________________
Signature of Registered Agent
State of _____________________________)
) ss
County of ___________________________ )
On this _______________________ day of __________________________________,
in the year 19 _____, before me, _____________________________________________,
a Notary Public in and for said state, personally appeared
______________________________ known to me to be the person who executed the
within Statement of Change of Business Office and acknowledged to me that
_____________ executed the same for the purposes therein stated.
(Notarial Seal) _________________________________________
Notary Public
My commission expires
_________________________________________
(The following should be executed only if the registered agent is a corporation)
IN WITNESS WHEREOF, the undersigned corporation has caused this report to
be executed in its name by its president or vice president, attested by its
secretary or assistant secretary this 27th day of March, 1998.
(Corporate Seal) NONE C T Corporation System
-----------------------------------------
Name of Corporation
If no seal, state "none".
By /s/ Kenneth J. Uva
---------------------------------------
President or Vice President
Attest:
/s/ Raui Hauer
- ----------------------------------------
Secretary or Assistant Secretary
<PAGE>
State of New York )
-----------------------
) ss
County of New York )
----------------------
On this 27th day of March in the year 1998, before me Theresa Alfieri, a Notary
---- ----- ----- ----------------
Public in and for said state, personally appeared Kenneth J. Uva,
---------------
(Name)
Vice President C T Corporation System known to me to be the person
- -------------- ----------------------
(Title) Name of Corporation
who executed the within Statement of Change of Business Office in behalf of said
corporation and acknowledged to me that he executed the same for the purposes
therein stated.
/s/ Theresa Alfieri
------------------------------------
Notary Public
(Notarial Seal)
My commission expires 12/31/99
---------------
<PAGE>
EXHIBIT 3.23
BYLAWS
OF
FEDERAL-MOGUL PRODUCTS, INC.
ARTICLE I
Shareholders
Section 1. Annual Meeting. The annual meeting of the shareholders of
Federal-Mogul Products, Inc. (the "Corporation") shall be held on the fourth
Wednesday in May of each year at the time stated in the notice of meeting, for
the purpose of electing directors and for the transaction of such other business
as may be determined by the Board of Directors or as otherwise properly may come
before the meeting. If the day fixed for the annual meeting shall be a legal
holiday at the place of meeting, such meeting shall be held on the next
succeeding business day.
Section 2. Special Meetings. Special meetings of the shareholders may be called
by the Chairman of the Board, or by the President, or by the Board of Directors,
or by the holders of not less than twenty percent of all the outstanding shares
of the Corporation entitled to vote.
Section 3. Place of Meeting. The Board of Directors may designate any place
either within or without the State of Missouri as the place of meeting for any
annual or special meeting of shareholders called by the Board of Directors. If
no designation is made or if a special meeting be called otherwise than by the
Board of Directors, the place of meeting shall be the headquarters of the
Corporation in the State of Michigan.
Section 4. Notice of Meetings. Written or printed notice stating the time, place
and purposes of a meeting of shareholders shall be given not less than ten nor
more than sixty days before the date of the meeting, by mail, by or at the
direction of the Chairman of the Board, the President, the Secretary, or the
directors or persons calling the meeting, to each shareholder of record entitled
to vote at such meeting. If mailed, such notice shall be deemed to be given when
deposited in the United States mail in a sealed envelope addressed to the
shareholder at his address as it appears on the records of the Corporation, with
postage thereon prepaid.
Section 5. Adjourned Meetings. Notice need not be given of an adjourned meeting
of shareholders if the time and place thereof are announced at the meeting at
which the adjournment is taken. At the adjourned meeting only such business may
be transacted as might have been transacted at the original meeting. If after
the adjournment the Board of Directors fixes a new record date for the adjourned
meeting, a notice of the adjourned meeting shall be given to each shareholder of
record on the new record date entitled to vote at the meeting.
Section 6. Voting Lists. It shall be the duty of the officer or agent who shall
have charge of the stock transfer books for shares of the Corporation to make
and certify a complete list of the shareholders entitled to vote at a
shareholder's meeting or any adjournment thereof, arranged in alphabetical order
within each class and series, with the addresses of, and the number of shares
<PAGE>
held by, each shareholder. Such list shall be produced at the time and place of
the meeting, shall be subject to the inspection by any shareholder during the
whole time of the meeting, and shall be prima facie evidence as to who are the
shareholders entitled to examine such list or to vote in person or by proxy at
such meeting.
Section 7. Quorum. Unless a greater or lesser quorum is provided by law, a
majority of the outstanding shares of the Corporation entitled to vote,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders. The shareholders present in person or by proxy at such meeting may
continue to do business until adjournment, notwithstanding the withdrawal of
enough shareholders to leave less than a quorum. Whether or not a quorum is
present, the meeting may be adjourned by a vote of the shares present.
Section 8. Manner of Acting. The election of directors shall be determined by a
plurality of the votes thereon or their proxies. Except as otherwise provided by
law, or by the Articles of Incorporation, all other matters shall be determined
by a majority of the votes cast by the holders of shares entitled to vote
thereon or their proxies.
ARTICLE I
Directors
Section 1. General Powers. The business and affairs of the Corporation shall be
managed by its Board of Directors, except as otherwise provided by law or by the
Articles of Incorporation.
Section 2. Number, Tenure and Qualifications. The number of directors of the
Corporation shall be as determined from time to time by the Board of Directors
but shall not be less than two nor more than eleven. Each director shall hold
office for the term for which he is named or elected and until his successor
shall have been elected and qualified, or until his resignation or removal.
Section 3. Annual Meetings. The newly elected Board of Directors shall meet
immediately following the annual meeting of shareholders at the place where such
annual shareholders meeting is held for the purpose of the organization of the
Board, the election of officers, and the transactions of such other business as
may properly come before the meeting, and no notice of such meeting shall be
necessary.
Section 4. Regular Meeting. Regular meetings of the Board of Directors may be
held without notice at such times and at such places, within or without the
State of Missouri, as shall from time to time be determined by the Board.
Section 5. Special Meetings. Special Meetings of the Board of Directors may be
called by the Chairman of the Board, the President or a majority of the
directors, and shall be called at the request of any two directors. Such
meetings, if called by the Chairman of the Board, the President or by a majority
of the directors may be held at such place within or without the State of
Missouri as the Chairman of the Board, the President or as a majority of the
Board of Directors may from time to time determine. If any such special meetings
are called other than by
2
<PAGE>
the Chairman of the Board, the President or a majority of the Board of
Directors, they shall be held at the headquarters of the Corporation in the
State of Michigan unless otherwise consented to in writing by all of the
directors or unless previous nuclear attack prevents the holding of a meeting at
such place, in which case such meeting shall be held as close to such registered
office as possible.
Section 6. Notice. Notice of any special meeting of directors shall be given by
or at the direction of the Chairman of the Board, the President, the Secretary
or the directors calling the meeting by written notice delivered personally or
mailed to each director at his business address, by telegram or by facsimile. If
mailed, such notice shall be given at least four days prior to the meeting and
shall be deemed to be given when deposited in the United States mail in a sealed
envelope so addressed, with postage thereon prepaid. If notice be given by
telegram or facsimile, such notice shall be given at least twenty-four hours
prior to the meeting and shall be deemed to be given when the telegram is
delivered to the telegraph company or successful transmission of facsimile. Any
director may waive notice of any meeting. The attendance of a director at any
meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened. A director may participate in a meeting by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and such participation shall
constitute attendance at any meeting. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Board of Directors
need be specified in the notice or waiver of notice of such meeting.
Section 7. Quorum. A majority of the Board of Directors then in office shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors, but, if less than a majority of the directors are present at said
meeting, a majority of the directors present may adjourn the meeting from time
to time without further notice.
Section 8. Manner of Acting. The vote of the majority of directors present at
the meeting at which a quorum is present shall be the act of the Board of
Directors, unless a larger number is required by law, the Articles of
Corporation or these Bylaws.
Section 9. Vacancies. Vacancies in the Board of Directors may be filled by a
majority of the remaining members of the Board though less than a quorum. Such
vacancies may be filled for a term of office continuing only until the next
election of Directors by the Shareholders.
Section 10. Compensation. Directors as such shall not receive any stated
salaries for their services, but by resolution of the Board of Directors, adopt
by a majority of directors then in office, a fixed sum and expenses of
attendance, if any may be allowed for attendance at each meeting of the Board of
Directors; provided that nothing herein contained shall be construed to preclude
any director from serving the Corporation in any capacity other than as a
director or officer and receiving compensation therefor.
3
<PAGE>
Section 11. Committees. The Board of Directors may designate one or more
committees, each committee to consist of one or more directors, and may
designate one or more directors as alternate members of a committee to replace
an absent or disqualified member at a committee meeting. In the absence or
disqualification of a member of a committee, the members thereof present at a
meeting and not disqualified from voting, whether or not they constitute a
quorum, may by unanimous vote appoint another director to act at the meeting in
the place of such absent or disqualified member. Committees and each member
thereof shall serve at the pleasure of the Board.
To the extent provided by the resolution of the Board of Directors a committee
shall have and may exercise all powers and authority of the Board in the
management of the business and affairs of the Corporation.
ARTICLE III
Officers
Section 1. Number. The Board of Directors shall elect a Chairman of the Board, a
President, a Secretary and a Treasurer, and may elect a Vice Chairman of the
Board, a Controller, one or more Executive Vice Presidents, Vice Presidents,
Assistant Secretaries, Assistant Treasurers and such other officers and agents
as it may deem necessary for the transaction of the business of the Corporation.
No one of the said officers except the Chairman of the Board and the Vice
Chairman of the Board need be a director. Two or more of the above offices
except those of President and Vice President may be held by the same person, but
no officer shall execute, acknowledge or verify any instrument in more than one
capacity if the instrument is required by law or the Articles of Incorporation
or these Bylaws to be executed, acknowledged or verified by two or more
officers.
Section 2. Election and Term of Office. The officers of the Corporation shall be
elected annually by the Board of Directors at the first meeting of the Board of
Directors held after each annual meeting of shareholders subject to the power of
the Board of Directors to designate any office at any time and elect any person
thereto. If the election of officers shall not be held at such meeting, such
election shall be held as soon thereafter as conveniently may be. Each officer
shall hold office for the term for which he is elected and until his successor
is elected and qualified or until his resignation or removal.
Section 3. Removal and Resignations. Any officer or agent may be removed by the
Board of Directors with or without cause. An officer may resign by written
notice to the Corporation. Such resignations shall be effective upon receipt by
the Corporation or at a subsequent time specified in the notice of resignation.
Section 4. Vacancies. The Board of Directors shall have the power to fill any
vacancies in any office occurring from whatever reason.
4
<PAGE>
Section 5. Authority of Officers, Agents and Employees, Generally, Except as
otherwise provided by law, the Articles of Incorporation or these Bylaws, all
officers, agents and employees of the Corporation shall have such powers and
perform such duties as from time to time may be prescribed by the Board of
Directors, or the Chairman of the Board. However, unless specifically authorized
by resolution of the Board of Directors, a person who is not an officer of the
Corporation shall have no authority to execute on its behalf any (1) contract
for the purchase or sale of lands or buildings, (2) deed, (3) lease of lands or
buildings, (4) mortgage, (5) instrument creating any lien on the personal or
real property of the Corporation or (6) contract or other instrument not entered
into in the ordinary course of business.
Section 6. The Chairman of the Board, The Vice Chairman of the Board and the
President. In addition to the powers and duties elsewhere herein conferred or
provided for, the Chairman of the Board, the Vice Chairman of the Board and the
President shall have the following powers and duties subject to the direction
and under the supervision of the board of Directors. The Chairman of the Board
shall preside at meetings of the Board of Directors and of the shareholders. In
the absence of the Chairman of the Board, the Vice Chairman of the Board, if
such office shall be created, shall so preside. The President shall preside at
meetings of the Board of Directors and of the shareholders in the absence of the
Chairman of the Board and any Vice Chairman of the Board.
Section 7. The Secretary. In addition to the powers and duties elsewhere herein
conferred or provided for, the Secretary shall have the following powers and
duties subject to the direction and under the supervision of the Board of
Directors and the Chairman of the Board. He shall attend all meetings of the
Board and all meetings of the shareholders and act as clerk thereof and record
all votes and the minutes of all proceedings in a book to be kept for the
purpose. He shall perform like duties for all directors' committees when
required. He shall have custody of the seal of the Corporation and shall have
authority to cause such seal to be affixed to or impressed or otherwise
reproduced upon all documents the execution of which on behalf of the
Corporation shall have been dully authorized. He shall cause to be kept records
containing the names and addresses of all shareholders of the Corporation, the
number, class and series of shares held by each and the dates when they
respectively became shareholders of record thereof at the headquarters of the
Corporation or at the office of its transfer agent within or without the State
of Missouri. In general, he shall perform the duties usually incident to the
office of Secretary. At any meeting of the shareholders or Board of Directors at
which the Secretary is not present a Secretary Pro Tempore or Clerk of the
meeting may be appointed by the meeting.
Section 8. The Treasurer. In addition to the powers and duties elsewhere herein
conferred or provided for, the Treasurer shall have the following powers and
duties subject to the direction and under the control of the Board of Directors
and the Chairman of the Board. He shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation. He shall deposit all moneys
and other valuable effects in the name of and to the credit of the Corporation,
in such depositories as may be designated by the Board of Director, and, in
general, he shall perform the duties usually incident to the office of
Treasurer. If required by the Board of Directors, the Treasurer shall furnish
the corporation with a proper bond, in a sum and with one or more
5
<PAGE>
sureties satisfactory to the Board of Directors, for the faithful performance of
the duties of his office, and for the restoration to the Corporation in case of
his death, resignation, retirement or removal from office of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control and belonging to the Corporation.
Section 9. Assistant Secretaries and Assistant Treasurers. In addition to the
powers and duties elsewhere herein conferred or provided for, Assistant
Secretaries and Assistant Treasurers shall have the following powers and duties
subject to the direction and under the supervision of the Board of Directors and
the Chairman of the Board. Any Assistant Secretary or Assistant Treasurer may
act as the Secretary or Treasurer, respectively, in the case of the sickness,
disability or temporary absence of the Secretary or Treasurer's the case may
be. In addition, any Assistant Secretary shall have the authority to cause the
seal of the Corporation to be affixed to or impressed or otherwise reproduced
upon all documents the execution of which on behalf of the Corporation shall
have been duly authorized whether or not the Secretary is sick, disabled or
absent.
ARTICLE IV
Fixing Record Date
In order to determine the shareholders entitled to notice of or to vote
at any meeting of shareholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or for the purpose of any other lawful action, the Board of Directors
may fix, in advance, a record date, which shall not be more than sixty nor less
than ten days before the date of such meeting, nor more than sixty days prior to
any other action. If no record date is fixed, the record date for determining
shareholders entitled to notice of or to vote at a meeting of shareholder shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held, and the record date for
determining shareholders for any other purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto. A determination of shareholders of record entitled to notice of or to
vote at a meeting of shareholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
ARTICLE V
Loans, Checks, Deposits, etc.
Section 1. Loans. No loans shall be contracted on behalf of the Corporation and
no evidences of indebtedness shall be issued in its name unless authorized by a
resolution of the Board of Directors. Such authority may be general or confined
to specific instances.
Section 2. Checks, Drafts, etc. All checks, drafts, or other orders for the
payment of money notes or other evidences of indebtedness issued in the name of
the Corporation shall be signed by such officers, employees, or agents of the
Corporation and in such manner as shall from time to
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<PAGE>
time be determined by or pursuant to and in accordance with general or specific
resolutions of the Board of Directors.
Section 3. Deposits. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as the Board of Directors may select. Such
selection shall be by or pursuant to and accordance with a general or specific
resolution of the Board of Directors.
ARTICLE VI
Certificates for Shares
Section 1. Certificates for Shares. Certificates representing shares of the
Corporation shall be in such form conforming to applicable laws as may be
determined by the Board of Directors and shall be signed by or in the name of
the Corporation by the Chairman of the Board, the Vice Chairman of the Board,
the President or a Vice President and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Corporation, certifying the
number, and class and series of shares represented by such certificate. The
signatures of the officers may be facsimiles if the certificate is countersigned
by a transfer agent or registered by a registrar other than the Corporation or
its employee. In case any officer has signed or whose facsimile signature has
been places upon a certificate ceases to be such officer before such certificate
is issued it may be issued by the Corporation with the same effect as if he were
such officer at the date of issue.
Section 2. Lost Certificate. If a certificate of stock be lost or destroyed, a
new certificate of the identical tenor of the one alleged to be lost or
destroyed may be issued upon satisfactory proof of such loss or destruction,
and, if required by the Board of Directors, the giving of a bond sufficient to
indemnify the Corporation against any claim that may be made against the
Corporation on account of the alleged lost or destroyed certificate or the
issuance of such a new certificate.
Section 3. Transfer of Shares. Transfer of shares of the Corporation shall be
made only on the books of the Corporation by the registered holder thereof or by
his attorney thereunto authorized by power of attorney duly executed and filed
with the Secretary or transfer agent of the Corporation, and on surrender for
cancellation of the certificate for such shares. The person in whose name shares
stand on the books of the Corporation shall be deemed the owner thereof for all
purposes as regards the Corporation.
Section 4. Regulations. The Board of Directors may make such rules and
regulations as it may deem expedient concerning the issue, transfer and
registration of the certificates for shares. It may appoint one or more transfer
agents or registrars or both, and may require all certificates to bear the
signature of either or both.
Section 5. Elimination of Certificates for Stock. The Corporation may by
resolution of the Board of Directors eliminate certificates representing shares
of the Corporation and provide for
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such other methods of recording, noticing ownership and disclosure as may be
provided by the rules of any national securities exchange on which such shares
are listed.
ARTICLE VII
Fiscal Year
The fiscal year of the Corporation shall begin on the first day of
January in each year and end on the thirty-first day of December in each year.
ARTICLES VIII
Seal
The following shall be the design for the corporate seal of the
Corporation: two concentric rings with the words "Federal-Mogul Products, Inc.,
Missouri" between the circles and the words "Corporate Seal" in the center, if
deemed necessary by the Board of Directors.
ARTICLE IX
Emergency Provisions
Section 1. General. The provisions of this Article shall be operative only
during a national emergency declared by the President of the United States or
the person performing the President's functions, or in the event of a nuclear,
atomic or other attach on the United States or a disaster making it impossible
or impracticable for the Corporation to conduct its business without recourse to
the provisions of this Article. Said provisions in such event shall override all
other Bylaws of the Corporation in conflict with any provisions of this Article,
and shall remain operative so long as it remains impossible or impracticable to
continue the business of the Corporation otherwise, but thereafter shall be
inoperative; provided that all actions taken in good faith pursuant to such
provisions shall thereafter remain in full force and effect unless and until
revoked by action taken pursuant to the provisions of the Bylaws other than
those contained in this Article.
Section 2. Unavailable Directors. All directors of the Corporation who are not
available to perform their duties as directors by reason of physical or mental
incapacity or for any other reason or who are unwilling to perform their duties
or whose whereabouts are unknown shall automatically cease to be directors, with
like effect as if such persons had resigned as directors, so long as such
unavailability continues.
Section 3. Authorized Number of Directors. The authorized number of directors
shall be the number of directors remaining after eliminating those who have
ceased to be directors pursuant to Section 2 of this Article, or the minimum
number required by law, whichever number is greater.
8
<PAGE>
Section 4. Quorum. The number of directors necessary to constitute a quorum
shall be one-third of the authorized number of directors as specified in the
foregoing Section, or such other minimum number as, pursuant to the law or
lawful decree then in force, it is possible for the Bylaws of a corporation to
specify.
Section 5. Creation of Emergency Committee. In the event the number of directors
remaining after eliminating those who have ceased to be directors pursuant to
Section 2 of this Article is less than the minimum number of authorized
directors required by law, then until the appointment of additional directors to
make up such required minimum, all the powers and authorities which the Board
could by law delegate, including all powers and authorities which the Board
could delegate to a committee, shall be automatically vested in an emergency
committee, and the emergency committee shall thereafter manage the affairs of
the Corporation pursuant to such powers and authorities and shall have all other
powers and authorities as may by law or lawful decree be conferred on any person
or body of persons during a period of emergency.
Section 6. Constitution of Emergency Committee. The emergency committee shall
consist of all the directors remaining after eliminating those who have ceased
to be directors pursuant to Section 2 of this Article, provided that such
remaining directors are not less than three in number. In the event such
remaining directors are less than three in number, the emergency committee shall
consist of three persons, who shall be the remaining director or directors and
either one or two officers or employees of the Corporation, as the remaining
director or directors may in writing designate. If there is no remaining
director, the emergency committee shall consist of the three most senior
officers of the Corporation who are available to serve, and if and to the extent
that officers are not available, the most senior employees of the Corporation.
Seniority shall be determined in accordance with any designation of seniority in
the minutes of the proceedings of the Board, and in the absence of such
designation, shall be determined by rate of remuneration. In the event that
there are no remaining directors and no officers or employees of the Corporation
available, the emergency committee shall consist of three persons designated in
writing by the shareholder owning the largest number of shares of record as of
the date of the last record date.
Section 7. Powers of Emergency Committee. The emergency committee, once
appointed, shall govern its own procedures and shall have power to increase the
number of members thereof beyond the original number, and in the event of a
vacancy or vacancies therein, arising at any time, the remaining member or
members of the emergency committee shall have the power to fill such vacancy or
vacancies. In the event at any time after its appointment all members of the
emergency committee shall die or resign or become unavailable to act for any
reason whatsoever, a new emergency committee shall be appointed in accordance
with the foregoing provisions of this Article.
Section 8. Directors Becoming Available. Any person who has ceased to be a
director pursuant to the provisions of Section 2 of this Article and who
thereafter becomes available to serve as a director shall automatically become a
member of the emergency committee.
9
<PAGE>
Section 9. Election of Board of Directors. The emergency committee shall, as
soon after its appointment as is practicable, take all requisite action to
secure the election of a Board of Directors, and upon such election all the
powers and authorities of the emergency committee shall cease.
Section 10. Termination of Emergency Committee. In the event, after the
appointment of an emergency committee, a sufficient number of persons who ceased
to be directors pursuant to Section 2 of this Article become available to serve
as directors, so that if they had not ceased to be directors as aforesaid, there
would be enough directors to constitute the minimum number of directors required
by law, then all such persons shall automatically be deemed to be reappointed as
directors and the powers and authorities of the emergency committee shall be at
an end.
ARTICLE X
Amendments
These Bylaws may be altered or new Bylaws may be made and adopted by the
affirmative vote of a majority of the Board of Directors.
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<PAGE>
EXHIBIT 3.24
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Champion Aviation, Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That the Board of Directors of said Corporation, by the unanimous
written consent of its members, filed with the minutes of the Board a resolution
proposing and declaring advisable the following amendment to the Certificate of
Incorporation of said Corporation:
RESOLVED, that the Certificate of Incorporation of Champion Aviation, Inc.
be amended by changing the First Article thereof so that, as amended, said
Article shall be and read as follows:
"The name of the Corporation is: Federal-Mogul Aviation, Inc."
SECOND: That in lieu of a meeting and vote of stockholders, the stockholders
have given unanimous written consent to said amendment in accordance with the
provisions of Section 228 of the General Corporation Law of the State of
Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with the
applicable provisions of Sections 141 and 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed by
David M. Sherbin, its Assistant Secretary, this 29th day of October, 1998.
/s/ David M. Sherbin
------------------------------------
By: David M. Sherbin
Title: Assistant Secretary
<PAGE>
CERTIFICATE OF INCORPORATION
OF
CHAMPION AVIATION, INC.
* * * * *
1. The name of the corporation is Champion Aviation, Inc.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall have
authority to issue is Ten Thousand Shares (10,000); all of such shares shall be
without par value.
5. The name and mailing address of each incorporator is as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
- ---- ---------------
<S> <C>
Barbara A. Widra 600 Travis Street, Suite 5800
Houston, Texas 77002
</TABLE>
The name and mailing address of each person, who is to serve as a director
until the first annual meeting of the stockholders or until a successor is
elected and qualified, is as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
- ---- ---------------
<S> <C>
D. Bradley McWilliams 600 Travis Street, Suite 5800
Houston, Texas 77002
Gordon A. Ulsh 600 Travis Street, Suite 5800
Houston, Texas 77002
Diane K. Schumacher 600 Travis Street, Suite 5800
Houston, Texas 77002
</TABLE>
6. The corporation is to have perpetual existence.
<PAGE>
7. In furtherance and not in limitation of the powers conferred by statute,
the board of directors is expressly authorized to make, alter or repeal the
bylaws of the corporation.
8. Elections of directors need not be by written ballot unless the bylaws of
the corporation shall so provide.
9. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except that the foregoing provisions shall not eliminate or
limit the liability of a director (i) for any breach of the director's duty of
loyalty to the corporation 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, or (iv)
for any transaction from which the director derived any improper personal
benefit.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose
of forming a corporation pursuant to the General Corporation Law of the State of
Delaware, does make this Certificate, hereby declaring and certifying that this
is my act and deed and the facts herein stated are true, and accordingly have
hereunto set my hand this 25th day of November, 1997.
/s/ Barbara A. Widra
------------------------------------
Barbara A. Widra
<PAGE>
EXHIBIT 3.25
BYLAWS
OF
FEDERAL-MOGUL AVIATION, INC.
ARTICLE I
Shareholders
Section 1. Annual Meeting. The annual meeting of the shareholders of
Federal-Mogul Aviation, Inc. (the "Corporation") shall be held on the fourth
Wednesday in May of each year at the time stated in the notice of meeting, for
the purpose of electing directors and for the transaction of such other business
as may be determined by the Board of Directors or as otherwise properly may come
before the meeting. If the day fixed for the annual meeting shall be a legal
holiday at the place of meeting, such meeting shall be held on the next
succeeding business day.
Section 2. Special Meetings. Special meetings of the shareholders may be called
by the Chairman of the Board, or by the President, or by the Board of Directors,
or by the holders of not less than twenty percent of all the outstanding shares
of the Corporation entitled to vote.
Section 3. Place of Meeting. The Board of Directors may designate any place
either within or without the State of Delaware as the place of meeting for any
annual or special meeting of shareholders called by the Board of Directors. If
no designation is made or if a special meeting be called otherwise than by the
Board of Directors, the place of meeting shall be the headquarters of the
Corporation in the State of Michigan.
Section 4. Notice of Meetings. Written or printed notice stating the time, place
and purposes of a meeting of shareholders shall be given not less than ten nor
more than sixty days before the date of the meeting, by mail, by or at the
direction of the Chairman of the Board, the President, the Secretary, or the
directors or persons calling the meeting, to each shareholder of record entitled
to vote at such meeting. If mailed, such notice shall be deemed to be given when
deposited in the United States mail in a sealed envelope addressed to the
shareholder at his address as it appears on the records of the Corporation, with
postage thereon prepaid.
Section 5. Adjourned Meetings. Notice need not be given of an adjourned meeting
of shareholders if the time and place thereof are announced at the meeting at
which the adjournment is taken. At the adjourned meeting only such business may
be transacted as might have been transacted at the original meeting. If after
the adjournment the Board of Directors fixes a new record date for the adjourned
meeting, a notice of the adjourned meeting shall be given to each shareholder of
record on the new record date entitled to vote at the meeting.
Section 6. Voting Lists. It shall be the duty of the officer or agent who shall
have charge of the stock transfer books for shares of the Corporation to make
and certify a complete list of the shareholders entitled to vote at a
shareholder's meeting or any adjournment thereof, arranged in alphabetical order
within each class and series, with the addresses of, and the number of shares
<PAGE>
held by, each shareholder. Such list shall be produced at the time and place of
the meeting, shall be subject to the inspection by any shareholder during the
whole time of the meeting, and shall be prima facie evidence as to who are the
shareholders entitled to examine such list or to vote in person or by proxy at
such meeting.
Section 7. Quorum. Unless a greater or lesser quorum is provided by law, a
majority of the outstanding shares of the Corporation entitled to vote,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders. The shareholders present in person or by proxy at such meeting may
continue to do business until adjournment, notwithstanding the withdrawal of
enough shareholders to leave less than a quorum. Whether or not a quorum is
present, the meeting may be adjourned by a vote of the shares present.
Section 8. Manner of Acting. The election of directors shall be determined by a
plurality of the votes thereon or their proxies. Except as otherwise provided by
law, or by the Articles of Incorporation, all other matters shall be determined
by a majority of the votes cast by the holders of shares entitled to vote
thereon or their proxies.
ARTICLE I
Directors
Section 1. General Powers. The business and affairs of the Corporation shall be
managed by its Board of Directors, except as otherwise provided by law or by the
Articles of Incorporation.
Section 2. Number, Tenure and Qualifications. The number of directors of the
Corporation shall be as determined from time to time by the Board of Directors
but shall not be less than two nor more than eleven. Each director shall hold
office for the term for which he is named or elected and until his successor
shall have been elected and qualified, or until his resignation or removal.
Section 3. Annual Meetings. The newly elected Board of Directors shall meet
immediately following the annual meeting of shareholders at the place where such
annual shareholders meeting is held for the purpose of the organization of the
Board, the election of officers, and the transactions of such other business as
may properly come before the meeting, and no notice of such meeting shall be
necessary.
Section 4. Regular Meeting. Regular meetings of the Board of Directors may be
held without notice at such times and at such places, within or without the
State of Delaware, as shall from time to time be determined by the Board.
Section 5. Special Meetings. Special Meetings of the Board of Directors may be
called by the Chairman of the Board, the President or a majority of the
directors, and shall be called at the request of any two directors. Such
meetings, if called by the Chairman of the Board, the President or by a majority
of the directors may be held at such place within or without the State of
Delaware as the Chairman of the Board, the President or as a majority of the
Board of Directors may from time to time determine. If any such special meetings
are called other than by
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the Chairman of the Board, the President or a majority of the Board of
Directors, they shall be held at the headquarters of the Corporation in the
State of Michigan unless otherwise consented to in writing by all of the
directors or unless previous nuclear attack prevents the holding of a meeting at
such place, in which case such meeting shall be held as close to such registered
office as possible.
Section 6. Notice. Notice of any special meeting of directors shall be given by
or at the direction of the Chairman of the Board, the President, the Secretary
or the directors calling the meeting by written notice delivered personally or
mailed to each director at his business address, by telegram or by facsimile. If
mailed, such notice shall be given at least four days prior to the meeting and
shall be deemed to be given when deposited in the United States mail in a sealed
envelope so addressed, with postage thereon prepaid. If notice be given by
telegram or facsimile, such notice shall be given at least twenty-four hours
prior to the meeting and shall be deemed to be given when the telegram is
delivered to the telegraph company or successful transmission of facsimile. Any
director may waive notice of any meeting. The attendance of a director at any
meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened. A director may participate in a meeting by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and such participation shall
constitute attendance at any meeting. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Board of Directors
need be specified in the notice or waiver of notice of such meeting.
Section 7. Quorum. A majority of the Board of Directors then in office shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors, but, if less than a majority of the directors are present at said
meeting, a majority of the directors present may adjourn the meeting from time
to time without further notice.
Section 8. Manner of Acting. The vote of the majority of directors present at
the meeting at which a quorum is present shall be the act of the Board of
Directors, unless a larger number is required by law, the Articles of
Corporation or these Bylaws.
Section 9. Vacancies. Vacancies in the Board of Directors may be filled by a
majority of the remaining members of the Board though less than a quorum. Such
vacancies may be filled for a term of office continuing only until the next
election of Directors by the Shareholders.
Section 10. Compensation. Directors as such shall not receive any stated
salaries for their services, but by resolution of the Board of Directors, adopt
by a majority of directors then in office, a fixed sum and expenses of
attendance, if any may be allowed for attendance at each meeting of the Board of
Directors; provided that nothing herein contained shall be construed to preclude
any director from serving the Corporation in any capacity other than as a
director or officer and receiving compensation therefor.
3
<PAGE>
Section 11. Committees. The Board of Directors may designate one or more
committees, each committee to consist of one or more directors, and may
designate one or more directors as alternate members of a committee to replace
an absent or disqualified member at a committee meeting. In the absence or
disqualification of a member of a committee, the members thereof present at a
meeting and not disqualified from voting, whether or not they constitute a
quorum, may by unanimous vote appoint another director to act at the meeting in
the place of such absent or disqualified member. Committees and each member
thereof shall serve at the pleasure of the Board.
To the extent provided by the resolution of the Board of Directors a committee
shall have and may exercise all powers and authority of the Board in the
management of the business and affairs of the Corporation.
ARTICLE III
Officers
Section 1. Number. The Board of Directors shall elect a Chairman of the Board, a
President, a Secretary and a Treasurer, and may elect a Vice Chairman of the
Board, a Controller, one or more Executive Vice Presidents, Vice Presidents,
Assistant Secretaries, Assistant Treasurers and such other officers and agents
as it may deem necessary for the transaction of the business of the Corporation.
No one of the said officers except the Chairman of the Board and the Vice
Chairman of the Board need be a director. Two or more of the above offices
except those of President and Vice President may be held by the same person, but
no officer shall execute, acknowledge or verify any instrument in more than one
capacity if the instrument is required by law or the Articles of Incorporation
or these Bylaws to be executed, acknowledged or verified by two or more
officers.
Section 2. Election and Term of Office. The officers of the Corporation shall be
elected annually by the Board of Directors at the first meeting of the Board of
Directors held after each annual meeting of shareholders subject to the power of
the Board of Directors to designate any office at any time and elect any person
thereto. If the election of officers shall not be held at such meeting, such
election shall be held as soon thereafter as conveniently may be. Each officer
shall hold office for the term for which he is elected and until his successor
is elected and qualified or until his resignation or removal.
Section 3. Removal and Resignations. Any officer or agent may be removed by the
Board of Directors with or without cause. An officer may resign by written
notice to the Corporation. Such resignations shall be effective upon receipt by
the Corporation or at a subsequent time specified in the notice of resignation.
Section 4. Vacancies. The Board of Directors shall have the power to fill any
vacancies in any office occurring from whatever reason.
4
<PAGE>
Section 5. Authority of Officers, Agents and Employees, Generally, Except as
otherwise provided by law, the Articles of Incorporation or these Bylaws, all
officers, agents and employees of the Corporation shall have such powers and
perform such duties as from time to time may be prescribed by the Board of
Directors, or the Chairman of the Board. However, unless specifically authorized
by resolution of the Board of Directors, a person who is not an officer of the
Corporation shall have no authority to execute on its behalf any (1) contract
for the purchase or sale of lands or buildings, (2) deed, (3) lease of lands or
buildings, (4) mortgage, (5) instrument creating any lien on the personal or
real property of the Corporation or (6) contract or other instrument not entered
into in the ordinary course of business.
Section 6. The Chairman of the Board, The Vice Chairman of the Board and the
President. In addition to the powers and duties elsewhere herein conferred or
provided for, the Chairman of the Board, the Vice Chairman of the Board and the
President shall have the following powers and duties subject to the direction
and under the supervision of the board of Directors. The Chairman of the Board
shall preside at meetings of the Board of Directors and of the shareholders. In
the absence of the Chairman of the Board, the Vice Chairman of the Board, if
such office shall be created, shall so preside. The President shall preside at
meetings of the Board of Directors and of the shareholders in the absence of the
Chairman of the Board and any Vice Chairman of the Board.
Section 7. The Secretary. In addition to the powers and duties elsewhere herein
conferred or provided for, the Secretary shall have the following powers and
duties subject to the direction and under the supervision of the Board of
Directors and the Chairman of the Board. He shall attend all meetings of the
Board and all meetings of the shareholders and act as clerk thereof and record
all votes and the minutes of all proceedings in a book to be kept for the
purpose. He shall perform like duties for all directors' committees when
required. He shall have custody of the seal of the Corporation and shall have
authority to cause such seal to be affixed to or impressed or otherwise
reproduced upon all documents the execution of which on behalf of the
Corporation shall have been dully authorized. He shall cause to be kept records
containing the names and addresses of all shareholders of the Corporation, the
number, class and series of shares held by each and the dates when they
respectively became shareholders of record thereof at the headquarters of the
Corporation or at the office of its transfer agent within or without the State
of Delaware. In general, he shall perform the duties usually incident to the
office of Secretary. At any meeting of the shareholders or Board of Directors at
which the Secretary is not present a Secretary Pro Tempore or Clerk of the
meeting may be appointed by the meeting.
Section 8. The Treasurer. In addition to the powers and duties elsewhere herein
conferred or provided for, the Treasurer shall have the following powers and
duties subject to the direction and under the control of the Board of Directors
and the Chairman of the Board. He shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation. He shall deposit all moneys
and other valuable effects in the name of and to the credit of the Corporation,
in such depositories as may be designated by the Board of Director, and, in
general, he shall perform the duties usually incident to the office of
Treasurer. If required by the Board of Directors, the Treasurer shall furnish
the corporation with a proper bond, in a sum and with one or more
5
<PAGE>
sureties satisfactory to the Board of Directors, for the faithful performance of
the duties of his office, and for the restoration to the Corporation in case of
his death, resignation, retirement or removal from office of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control and belonging to the Corporation.
Section 9. Assistant Secretaries and Assistant Treasurers. In addition to the
powers and duties elsewhere herein conferred or provided for, Assistant
Secretaries and Assistant Treasurers shall have the following powers and duties
subject to the direction and under the supervision of the Board of Directors and
the Chairman of the Board. Any Assistant Secretary or Assistant Treasurer may
act as the Secretary or Treasurer, respectively, in the case of the sickness,
disability or temporary absence of the Secretary or Treasurer's the case may
be. In addition, any Assistant Secretary shall have the authority to cause the
seal of the Corporation to be affixed to or impressed or otherwise reproduced
upon all documents the execution of which on behalf of the Corporation shall
have been duly authorized whether or not the Secretary is sick, disabled or
absent.
ARTICLE IV
Fixing Record Date
In order to determine the shareholders entitled to notice of or to vote
at any meeting of shareholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or for the purpose of any other lawful action, the Board of Directors
may fix, in advance, a record date, which shall not be more than sixty nor less
than ten days before the date of such meeting, nor more than sixty days prior to
any other action. If no record date is fixed, the record date for determining
shareholders entitled to notice of or to vote at a meeting of shareholder shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held, and the record date for
determining shareholders for any other purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto. A determination of shareholders of record entitled to notice of or to
vote at a meeting of shareholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
ARTICLE V
Loans, Checks, Deposits, etc.
Section 1. Loans. No loans shall be contracted on behalf of the Corporation and
no evidences of indebtedness shall be issued in its name unless authorized by a
resolution of the Board of Directors. Such authority may be general or confined
to specific instances.
Section 2. Checks, Drafts, etc. All checks, drafts, or other orders for the
payment of money notes or other evidences of indebtedness issued in the name of
the Corporation shall be signed by such officers, employees, or agents of the
Corporation and in such manner as shall from time to
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time be determined by or pursuant to and in accordance with general or specific
resolutions of the Board of Directors.
Section 3. Deposits. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as the Board of Directors may select. Such
selection shall be by or pursuant to and accordance with a general or specific
resolution of the Board of Directors.
ARTICLE VI
Certificates for Shares
Section 1. Certificates for Shares. Certificates representing shares of the
Corporation shall be in such form conforming to applicable laws as may be
determined by the Board of Directors and shall be signed by or in the name of
the Corporation by the Chairman of the Board, the Vice Chairman of the Board,
the President or a Vice President and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Corporation, certifying the
number, and class and series of shares represented by such certificate. The
signatures of the officers may be facsimiles if the certificate is countersigned
by a transfer agent or registered by a registrar other than the Corporation or
its employee. In case any officer has signed or whose facsimile signature has
been places upon a certificate ceases to be such officer before such certificate
is issued it may be issued by the Corporation with the same effect as if he were
such officer at the date of issue.
Section 2. Lost Certificate. If a certificate of stock be lost or destroyed, a
new certificate of the identical tenor of the one alleged to be lost or
destroyed may be issued upon satisfactory proof of such loss or destruction,
and, if required by the Board of Directors, the giving of a bond sufficient to
indemnify the Corporation against any claim that may be made against the
Corporation on account of the alleged lost or destroyed certificate or the
issuance of such a new certificate.
Section 3. Transfer of Shares. Transfer of shares of the Corporation shall be
made only on the books of the Corporation by the registered holder thereof or by
his attorney thereunto authorized by power of attorney duly executed and filed
with the Secretary or transfer agent of the Corporation, and on surrender for
cancellation of the certificate for such shares. The person in whose name shares
stand on the books of the Corporation shall be deemed the owner thereof for all
purposes as regards the Corporation.
Section 4. Regulations. The Board of Directors may make such rules and
regulations as it may deem expedient concerning the issue, transfer and
registration of the certificates for shares. It may appoint one or more transfer
agents or registrars or both, and may require all certificates to bear the
signature of either or both.
Section 5. Elimination of Certificates for Stock. The Corporation may by
resolution of the Board of Directors eliminate certificates representing shares
of the Corporation and provide for
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such other methods of recording, noticing ownership and disclosure as may be
provided by the rules of any national securities exchange on which such shares
are listed.
ARTICLE VII
Fiscal Year
The fiscal year of the Corporation shall begin on the first day of
January in each year and end on the thirty-first day of December in each year.
ARTICLES VIII
Seal
The following shall be the design for the corporate seal of the
Corporation: two concentric rings with the words "Federal-Mogul Aviation, Inc.,
Delaware" between the circles and the words "Corporate Seal" in the center, if
deemed necessary by the Board of Directors.
ARTICLE IX
Emergency Provisions
Section 1. General. The provisions of this Article shall be operative only
during a national emergency declared by the President of the United States or
the person performing the President's functions, or in the event of a nuclear,
atomic or other attach on the United States or a disaster making it impossible
or impracticable for the Corporation to conduct its business without recourse to
the provisions of this Article. Said provisions in such event shall override all
other Bylaws of the Corporation in conflict with any provisions of this Article,
and shall remain operative so long as it remains impossible or impracticable to
continue the business of the Corporation otherwise, but thereafter shall be
inoperative; provided that all actions taken in good faith pursuant to such
provisions shall thereafter remain in full force and effect unless and until
revoked by action taken pursuant to the provisions of the Bylaws other than
those contained in this Article.
Section 2. Unavailable Directors. All directors of the Corporation who are not
available to perform their duties as directors by reason of physical or mental
incapacity or for any other reason or who are unwilling to perform their duties
or whose whereabouts are unknown shall automatically cease to be directors, with
like effect as if such persons had resigned as directors, so long as such
unavailability continues.
Section 3. Authorized Number of Directors. The authorized number of directors
shall be the number of directors remaining after eliminating those who have
ceased to be directors pursuant to Section 2 of this Article, or the minimum
number required by law, whichever number is greater.
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Section 4. Quorum. The number of directors necessary to constitute a quorum
shall be one-third of the authorized number of directors as specified in the
foregoing Section, or such other minimum number as, pursuant to the law or
lawful decree then in force, it is possible for the Bylaws of a corporation to
specify.
Section 5. Creation of Emergency Committee. In the event the number of directors
remaining after eliminating those who have ceased to be directors pursuant to
Section 2 of this Article is less than the minimum number of authorized
directors required by law, then until the appointment of additional directors to
make up such required minimum, all the powers and authorities which the Board
could by law delegate, including all powers and authorities which the Board
could delegate to a committee, shall be automatically vested in an emergency
committee, and the emergency committee shall thereafter manage the affairs of
the Corporation pursuant to such powers and authorities and shall have all other
powers and authorities as may by law or lawful decree be conferred on any person
or body of persons during a period of emergency.
Section 6. Constitution of Emergency Committee. The emergency committee shall
consist of all the directors remaining after eliminating those who have ceased
to be directors pursuant to Section 2 of this Article, provided that such
remaining directors are not less than three in number. In the event such
remaining directors are less than three in number, the emergency committee shall
consist of three persons, who shall be the remaining director or directors and
either one or two officers or employees of the Corporation, as the remaining
director or directors may in writing designate. If there is no remaining
director, the emergency committee shall consist of the three most senior
officers of the Corporation who are available to serve, and if and to the extent
that officers are not available, the most senior employees of the Corporation.
Seniority shall be determined in accordance with any designation of seniority in
the minutes of the proceedings of the Board, and in the absence of such
designation, shall be determined by rate of remuneration. In the event that
there are no remaining directors and no officers or employees of the Corporation
available, the emergency committee shall consist of three persons designated in
writing by the shareholder owning the largest number of shares of record as of
the date of the last record date.
Section 7. Powers of Emergency Committee. The emergency committee, once
appointed, shall govern its own procedures and shall have power to increase the
number of members thereof beyond the original number, and in the event of a
vacancy or vacancies therein, arising at any time, the remaining member or
members of the emergency committee shall have the power to fill such vacancy or
vacancies. In the event at any time after its appointment all members of the
emergency committee shall die or resign or become unavailable to act for any
reason whatsoever, a new emergency committee shall be appointed in accordance
with the foregoing provisions of this Article.
Section 8. Directors Becoming Available. Any person who has ceased to be a
director pursuant to the provisions of Section 2 of this Article and who
thereafter becomes available to serve as a director shall automatically become a
member of the emergency committee.
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Section 9. Election of Board of Directors. The emergency committee shall, as
soon after its appointment as is practicable, take all requisite action to
secure the election of a Board of Directors, and upon such election all the
powers and authorities of the emergency committee shall cease.
Section 10. Termination of Emergency Committee. In the event, after the
appointment of an emergency committee, a sufficient number of persons who ceased
to be directors pursuant to Section 2 of this Article become available to serve
as directors, so that if they had not ceased to be directors as aforesaid, there
would be enough directors to constitute the minimum number of directors required
by law, then all such persons shall automatically be deemed to be reappointed as
directors and the powers and authorities of the emergency committee shall be at
an end.
ARTICLE X
Amendments
These Bylaws may be altered or new Bylaws may be made and adopted by the
affirmative vote of a majority of the Board of Directors.
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EXHIBIT 4.8
_____________________________________________
Registration Rights Agreement
Dated as of January 20, 1999
among
Federal-Mogul Corporation,
and
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
and
Chase Securities, Inc.
_____________________________________________
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this 20th day of January 1999, among Federal-Mogul Corporation, a
Michigan corporation (the "Company"), and Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Chase Securities Inc. (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated
January 14, 1999, among the Company, the Guarantors (as hereinafter defined) and
the Initial Purchasers (the "Purchase Agreement"), which provides for the sale
by the Company to the Initial Purchasers of an aggregate of $400,000,000
principal amount of the Company's 7 3/8% Notes due and an aggregate of
$600,000,000 principal amount of the Company's 7 1/2% Notes due 2009
(collectively, the "Notes"). The Notes will be guaranteed (collectively the
"Guarantees") by each of the Guarantors. The Notes and the Guarantees are
collectively referred to herein as the "Securities". In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Company has agreed
to provide to the Initial Purchasers and their direct and indirect transferees
the registration rights set forth in this Agreement. The execution of this
Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions:
-----------
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Closing Date" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company, provided, however, that such depositary
must have an address in the Borough of Manhattan, in the City of New York.
"Exchange Offer" shall mean the exchange offer by the Company and the
Guarantors of Exchange Securities for Registrable Securities pursuant to Section
2.1 hereof.
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"Exchange Offer Registration" shall mean a registration under the 1933
Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement,
including the Prospectus contained therein, all exhibits thereto and all
documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2.1
hereof.
"Exchange Securities" shall mean the 7 3/8% Notes due 2006, and the
7 1/2% Notes due 2009 issued by the Company under the Indenture and guaranteed
by the Guarantors containing terms identical to the Securities in all material
respects (except for references to certain interest rate provisions,
restrictions on transfers and restrictive legends), to be offered to Holders of
Securities in exchange for Registrable Securities pursuant to the Exchange
Offer.
"Guarantee" shall mean, with respect to the Notes, the guarantees
thereof by the Guarantors, with respect to the Exchange Securities, the
guarantees thereof by the Guarantors and with respect to the Private Exchange
Securities, the guarantees thereof by the Guarantors.
"Guarantors" collectively shall mean the Company's subsidiaries listed
on the signature page of the Purchase Agreement together with any subsidiary
that in the future executes a supplemental indenture pursuant to which such
subsidiary agrees to guarantee the Notes.
"Holder" shall mean an Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture and each Participating Broker-Dealer that holds Exchange
Securities for so long as such Participating Broker-Dealer is required to
deliver a prospectus meeting the requirements of the 1933 Act in connection with
any resale of such Exchange Securities.
"Indenture" shall mean the Indenture relating to the Securities, dated
as of January 20, 1999, among the Company, the Guarantors and The Bank of New
York, as trustee, as the same may be amended, supplemented, waived or otherwise
modified from time to time in accordance with the terms thereof.
"Initial Purchaser" or "Initial Purchasers" shall have the meaning set
forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Securities; provided that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company, the Guarantors and other
obligors on the Securities or any Affiliate (as defined in the Indenture) of the
Company shall be
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disregarded in determining whether such consent or approval was given by the
Holders of such required percentage amount.
"Participating Broker-Dealer" shall mean any of Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Chase Securities Inc. and any other broker-
dealer which makes a market in the Securities and exchanges Registrable
Securities in the Exchange Offer for Exchange Securities.
"Person" shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated organization, or
a government or agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section 2.1
hereof.
"Private Exchange Securities" shall have the meaning set forth in
Section 2.1 hereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including any such
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by a Shelf Registration Statement, and by
all other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Securities and, if issued, the
Private Exchange Securities; provided, however, that Securities and, if issued,
the Private Exchange Securities, shall cease to be Registrable Securities when
(i) a Registration Statement with respect to such Securities shall have been
declared effective under the 1933 Act and such Securities shall have been
disposed of pursuant to such Registration Statement, (ii) such Securities have
been sold to the public pursuant to Rule 144 (or any similar provision then in
force, but not Rule 144A) under the 1933 Act or are eligible to be sold to the
public pursuant to Rule 144 (k) under the 1933 Act, (iii) such Securities shall
have ceased to be outstanding, (iv) such Securities shall have been otherwise
transferred by the Holder and a new security not bearing a legend restricting
further transfer shall have been delivered by the Company and subsequent
disposition of such Note shall not require registration or qualification under
the Securities Act, or (v) the Exchange Offer is consummated (except in the case
of Securities purchased from the Company and continued to be held by the Initial
Purchasers).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantors with this
Agreement, including without limitation; (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. (the "NASD") registration and filing
fees, (ii) all fees and expenses incurred in connection with
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<PAGE>
compliance with state securities or blue sky laws and compliance with the rules
of the NASD (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any of the
Exchange Securities or Registrable Securities and any filings with the NASD),
(iii) all expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, and any other documents
relating to the performance of and compliance with this Agreement by the
Company, (iv) all fees and expenses incurred in connection with the listing, if
any, of any of the Registrable Securities on any securities exchange or
exchanges, (v) all rating agency fees, (vi) the fees and disbursements of
counsel for the Company and of the independent public accountants of the
Company, including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, (vii) the fees and
expenses of the Trustee, and any exchange agent or custodian, (viii) the
reasonable fees and disbursements of one firm of special counsel representing
the Holders of Registrable Securities in any Shelf Registration and (ix) the
fees and expenses of any special experts retained by the Company in connection
with any Registration Statement, but excluding underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company and the Guarantors which covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement, and all
amendments and supplements to any such Registration Statement, including post-
effective amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently performed
by the United States Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company and the Guarantors pursuant to the provisions of
Section 2.2 of this Agreement which covers all of the Registrable Securities or
all of the Private Exchange Securities on an appropriate form under Rule 415
under the 1933 Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including post-
effective amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
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2. Registration Under the 1933 Act.
-------------------------------
2.1 Exchange Offer. (i) The Company and the Guarantors shall, for the
benefit of the Holders, at the Company's cost, unless the Exchange offer would
not be permitted by applicable law or SEC policy, (A) prepare and, as soon as
practicable but not later than 180 days following the Closing Date, file with
the SEC an Exchange Offer Registration Statement on an appropriate form under
the 1933 Act, with respect to a proposed Exchange Offer and the issuance and
delivery to the Holders, in exchange for the Registrable Securities (other than
Private Exchange Securities), of a like principal amount of Exchange Securities,
(B) use their best efforts to cause the Exchange Offer Registration Statement to
be declared effective under the 1933 Act within 240 days of the Closing Date,
(C) use their best efforts to keep the Exchange Offer Registration Statement
effective until the closing of the Exchange Offer and (D) use their best efforts
to cause the Exchange Offer to be consummated not later than 270 days following
the Closing Date. The Exchange Securities will be issued under the Indenture.
Upon the effectiveness of the Exchange Offer Registration Statement, the Company
and the Guarantors shall promptly commence the Exchange Offer, it being the
objective of such Exchange Offer to enable each holder eligible and electing to
exchange Registrable Securities for Exchange Securities (assuming that such
Holder (a) is not an affiliate of the Company within the meaning of Rule 405
under the 1933 Act, (b) is not a broker-dealer tendering Registrable Securities
acquired directly from the Company or the Guarantors for its own account, (c)
acquired the Exchange Securities in the ordinary course of such Holder's
business and (d) has no arrangements or understandings with any Person to
participate in the Exchange Offer for the purpose of distributing the Exchange
Securities) to transfer such Exchange Securities from and after their receipt
without any limitations or restrictions under the 1933 Act and under state
securities or blue sky laws other than the prospectus delivery requirement
applicable to a broker-dealer.
(ii) In connection with the Exchange Offer, the Company shall, and
shall cause each of the Guarantors as applicable, to:
(a) mail as promptly as practicable to each Holder a copy of
the Prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal (including the
representations required to be made by such Holder under Section 2.1(v) below)
and related documents;
(b) keep the Exchange Offer open for acceptance for a period of
not less than 30 calendar days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law) (such period referred to
herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange
Offer;
(d) permit Holders to withdraw tendered Registrable Securities
at any timed prior to 5:00 p.m. (Eastern Time), on the last business day of the
Exchange Period, by sending to the institution specified in the notice in clause
(b) above, a telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable
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<PAGE>
Securities delivered for exchange, the principal amount of Registrable
Securities that such Holder wishes to withdraw and a statement that such Holder
is withdrawing such Holder's election to have such Securities exchanged;
(e) notify each Holder that any Registrable Security not
tendered will remain outstanding and continue to accrue interest, but will not
retain any rights under this Agreement (except in the case of the Initial
Purchasers and Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
(iii) If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Securities acquired by them and having the status of an
unsold allotment in the initial distribution, the Company and the Guarantors
upon the request of any Initial Purchaser shall, simultaneously with the
delivery of the Exchange Securities in the Exchange Offer, issue and deliver to
such Initial Purchaser in exchange (the "Private Exchange") for the Securities
held by such Initial Purchaser, a like principal amount of debt securities of
the Company (guaranteed by the Guarantors) that are identical (except that such
securities shall bear appropriate transfer restrictions) to the Exchange
Securities (the "Private Exchange Securities").
(iv) The Exchange Securities and the Private Exchange Securities
shall be issued under (i) the Indenture or (ii) an indenture identical in all
material respects to the Indenture and which, in either case, has been qualified
under the Trust Indenture Act of 1939, as amended (the "TIA"), or is exempt from
such qualification and shall provide that the Exchange Securities shall not be
subject to the transfer restrictions set forth in the Indenture but that the
Private Exchange Securities shall be subject to such transfer restrictions. The
Indenture or such indenture shall provide that each series of the Exchange
Securities, the Private Exchange Securities and the Securities shall vote and
consent together on all matters as one class. The Private Exchange Securities
shall be of the same series as the "Exchange Securities" and the Company shall
use all commercially reasonable efforts to have the Private Exchange Securities
bear the same CUSIP numbers, Euroclear and Cedel Common Code Nos. and
International Identification Numbers ("ISIN") as the Exchange Securities. The
Company shall not have any liability under this Agreement solely as a result of
such Private Exchange Securities not bearing the same CUSIP numbers, Euroclear
and Cedel Common Code Nos and ISINs as the Exchange Securities.
(v) Each Holder of Registrable Securities that wishes to exchange
such Registrable Securities for Exchange Securities in the Exchange Offer will
be required to represent that:
(a) any Exchange Securities to be received by it shall be
acquired in the ordinary course of its business;
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<PAGE>
(b) it has no arrangement or understanding with any person to
participate in the distribution (within the meaning of the 1933 Act)
of the Exchange Securities;
(c) it is not an affiliate of the Company (as defined in Rule
405 under the 1933 Act); and
(d) such other representations reasonably necessary under
applicable SEC rules, regulations or interpretations.
If such Holder is not a broker-dealer, it will be required to represent that it
is not engaged in, and does not intend to engage in, the distribution of the
Exchange Securities. If the Holder is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Registrable Securities that were
acquired as a result of market-making activities or other trading activities, it
will be required to acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities.
(vi) As soon as practicable after the close of the Exchange Offer
and/or the Private Exchange, as the case may be, the Company, and each of the
Guarantors as applicable, shall:
(a) accept for exchange all Registrable Securities duly tendered
and not validly withdrawn pursuant to the Exchange Offer in accordance
with the terms of the Exchange Offer Registration Statement and the
letter of transmittal which shall be an exhibit thereto;
(b) accept for exchange all Securities properly tendered
pursuant to the Private Exchange;
(c) deliver to the Trustee for cancellation all Registrable
Securities so accepted for exchange; and
(d) cause the Trustee promptly to authenticate and deliver
Exchange Securities or Private Exchange Securities, as the case may
be, to each Holder of Registrable Securities as so accepted for
exchange in a principal amount equal to the principal amount of the
Registrable Securities of such Holder so accepted for exchange.
(vii) Interest on each Exchange Security and Private Exchange
Security will accrue from the last date on which interest was paid on the
Registrable Securities surrendered in exchange therefor or, if no interest has
been paid on the Registrable Securities, from the date of original issuance. The
Exchange Offer and the Private Exchange shall not be subject to any conditions,
other than (i) that the Exchange Offer or the Private Exchange, or the making of
any exchange by a Holder, does not violate applicable law or any SEC policy,
(ii) the due tendering of
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Registrable Securities in accordance with the Exchange Offer and the Private
Exchange, (iii) that each Holder of Registrable Securities exchanged in the
Exchange Offer shall have represented that all Exchange Securities to be
received by it shall be acquired in the ordinary course of its business and that
at the time of the consummation of the Exchange Offer it shall have no
arrangement or understanding with any person to participate in the distribution
(within the meaning of the 1933 Act) of the Exchange Securities and shall have
made such other representations as may be reasonably necessary under applicable
SEC rules, regulations or interpretations to render the use of Form S-4 or other
appropriate form under the 1933 Act available and (iv) that no action or
proceeding shall have been instituted or threatened in any court or by or before
any governmental agency with respect to the Exchange Offer or the Private
Exchange which, in the Company's judgment would reasonably be expected to impair
the ability of the Company to proceed with the Exchange Offer or the Private
Exchange. The Company shall inform the Initial Purchasers of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchasers shall have the right to contact such Holders and otherwise facilitate
the tender of Registrable Securities in the Exchange Offer.
2.2 Shelf Registration. (i) If, because of any changes in law, SEC
rules or regulations or applicable interpretations thereof by the staff of the
SEC, the Company or the Guarantors are not permitted to file the Exchange
Registration Statement or effect the Exchange Offer as contemplated by Section
2.1 hereof, (ii) if for any other reason the Exchange Offer Registration
Statement is not declared effective within 240 days following the original issue
of the Registrable Securities or the Exchange Offer is not consummated within
270 days after the original issue of the Registrable Securities, or (iii) if a
Holder (A) notifies the Company within 20 days after the commencement of the
Exchange Offer that it is not permitted to participate in the Exchange Offer or
(B) does not receive fully tradeable Exchange Securities pursuant to the
Exchange Offer, then in case of each of clauses (i) through (iii) each of the
Company, and the Guarantors as applicable, shall, at the Company's cost:
(a) As promptly as practicable, file with the SEC, and thereafter
shall use its best efforts to cause to be declared effective as
promptly as practicable but no later than the later of (1) 240 days
after the Closing Date or (2) 30 days after such filing obligation
arises (or 90 days in the event the SEC performs a full review of such
Shelf Registration Statement) a Shelf Registration Statement relating
to the offer and sale of the Registrable Securities by the Holders
from time to time in accordance with the methods of distribution
elected by the Majority Holders participating in the Shelf
Registration and set forth in such Shelf Registration Statement.
(b) Use its best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of two years from the
Closing Date or for such shorter period that will terminate when all
Registrable Securities covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement or cease
to be outstanding or otherwise to be Registrable Securities (the
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"Effectiveness Period"); provided, however, that the Company and the
Guarantors will be permitted to suspend the use of the Prospectus
forming part of the Shelf Registration Statement if compliance with
its obligations under this Agreement to maintain the effectiveness of,
supplement or amend such Shelf Registration Statement would require
under applicable law additional disclosure of material non-public
information by the Company as to which, and so long as, the Company
has a bona fide business purpose in not disclosing; and provided
further that the maximum period of time during which the Company shall
be permitted to so suspend the use of the Prospectus forming a part of
the Shelf Registration Statement shall be a period not to exceed 30
days in any three-month period, which may be extended to 60 days in
any three-month period for reasons related to material acquisitions,
material divestitures or other significant transactions involving
Federal-Mogul, but in any event not to exceed 120 days in any twelve-
month period.
(c) Notwithstanding any other provisions hereof, use its best efforts
to ensure that (i) any Shelf Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any supplement
thereto complies in all material respects with the 1933 Act and the
rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any Prospectus
forming part of any Shelf Registration Statement, and any supplement
to such Prospectus (as amended or supplemented from time to time),
does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements, in
light of the circumstances under which they were made, not misleading.
(d) No Holder of Securities may include any of its Registrable
Securities in any Shelf Registration pursuant to this Agreement unless
and until such Holder furnishes to the Company in writing, within 30
days after receipt of the first request from the Company therefor, the
information relating to such Holder that would be required by the SEC
to be included in such Shelf Registration Statement or any Prospectus
included therein, provided that, the Company delivers two requests for
such information, each of which states that such Holder's Registrable
Securities will not be included in the Shelf Registration unless the
required information is provided within the allotted time period and
provided further, that the second request for such information is
delivered by the Company between 5 and 15 days after delivery of the
first such request. Each Holder as to which any Shelf Registration is
being effected agrees to timely furnish to the Company all information
necessary to be disclosed in the applicable Shelf Registration
Statement or Prospectus included therein in order to make the
information previously furnished to the Company by such Holder not
materially misleading.
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(e) The Company and the Guarantors shall not permit any securities
other than Registrable Securities to be included in the Shelf
Registration Statement. The Company and the Guarantors further agree,
if necessary, to supplement or amend the Shelf Registration Statement,
as required by Section 3(b) below, and to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
2.3 Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 or 2.2. Each Holder
shall pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
2.4 Effectiveness. (a) The Company and the Guarantors will be deemed
not have used their best efforts to cause the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may be, to become, or
to remain, effective during the requisite period if the Company or any Guarantor
voluntarily takes any action that would, or omits to take any action which
omission would, result in any such Registration Statement not being declared
effective or in the Holders of Registrable Securities covered thereby not being
able to exchange or offer and sell such Registrable Securities during that
period as and to the extent contemplated hereby, unless such action is required
by applicable law or otherwise permitted under Section 2.2(i)(b).
(b) An Exchange Offer Registration Statement pursuant to Section 2.1
hereof or a Shelf Registration Statement pursuant to Section 2.2 hereof will not
be deemed to have become effective unless it has been declared effective by the
SEC; provided, however, that if, after it has been declared effective, the
offering of Registrable Securities pursuant to an Exchange Offer Registration
Statement or a Shelf Registration Statement subject to any stop order,
injunction or other order or requirement of the SEC, or any other governmental
agency or court, such Registration Statement will be deemed not to have become
effective during the period in which it was so subject, until the offering of
Registrable Securities pursuant to such Registration Statement may legally
resume.
2.5 Interest. In the event that either (a) unless the Exchange Offer
would not be permitted by applicable law or SEC policy, the Exchange Offer
Registration Statement is not filed with the Commission on or prior to the 180th
calendar day following the date of original issue of the Securities, (b) unless
the Exchange Offer would not be permitted by applicable law or SEC policy, the
Exchange Offer Registration Statement has not been declared effective on or
prior to the 240th calendar day following the date of original issue of the
Securities, (c) unless the Exchange Offer would not be permitted by applicable
law or SEC policy, the Exchange Offer is not consummated on or prior to the
270th calendar day following the date of original issue of the Securities, or
(d) in the event a Shelf Registration Statement is required to be filed
hereunder and such Shelf Registration Statement is not declared effective by the
SEC on or before the date specified in 2.2(i)(a) above (each such event referred
to in clauses (a) through (d) above, a "Registration Default"), then the
interest rate borne by the Securities as to which a Registration
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Default exists will be increased ("Additional Interest") by one-quarter of one
percent (0.25%) per annum with respect to the first 90-day period (or portion
thereof) during which a Registration Default is continuing immediately following
the occurrence of such Registration Default and such interest rate shall
increase by an additional one-quarter of one percent (0.25%) per annum at the
beginning of each subsequent 90-day period while a Registration Default is
continuing until all Registration Defaults have been cured, up to a maximum rate
of Additional Interest of 1.00% per annum. Following the cure of all
Registration Defaults, Additional Interest shall cease to accrue (but any
accrued interest shall be payable) and the interest rate on the Securities as to
which a Registration Default existed will revert to the original rate.
Additional Interest shall be computed based on the actual number of days elapsed
in each 90-day period during which a Registration Default exists and is
continuing.
If the Shelf Registration Statement ceases to be effective or is
unusable by the Holders for any other reason, and the aggregate number of days
in any consecutive twelve-month period for which the Shelf Registration
Statement ceases to be effective or shall not be usable exceeds 30 days in the
aggregate (other than as permitted under Section 2.2(i)(b) above) (a "Default"),
then the interest rate borne by the Securities as to which the Default exists
will be increased by one-quarter of one percent (0.25%) per annum with respect
to the first 90-day period (or portion thereof) beginning on the 31st day after
the Shelf Registration Statement ceases to be effective or otherwise usable, and
such interest rate shall increase by an additional one-quarter of one percent
(0.25%) per annum at the beginning of each subsequent 90-day period during which
the Shelf Registration Statement ceases to be effective or otherwise usable,
provided that the maximum aggregate increase in the interest rate will in no
event exceed one percent (1.00%) per annum. Any amounts payable under this
paragraph shall also be deemed "Additional Interest" for purposes of this
Agreement. Upon the Shelf Registration Statement once again becoming usable.
Additional Interest as a result of the Default shall cease to accrue (but any
accrued amount shall be payable) and the interest rate borne by the Securities
as to which the Default existed will be reduced to the original interest rate if
the Company is otherwise in compliance with this Agreement at such time.
Additional Interest shall be computed based on the actual number of days elapsed
in each 90-day period in which the Shelf Registration Statement is unusable.
The Company shall notify the Trustee within three business days after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "Event Date"). Additional Interest shall be
paid by depositing with the Trustee, in trust, for the benefit of the Holders of
Registrable Securities entitled thereto, on or before the applicable semiannual
interest payment date, immediately available funds in sums sufficient to pay the
Additional Interest then due. The Additional Interest due shall be payable on
each interest payment date to the record Holder of Securities entitled to
receive the interest payment to be paid on such date as set forth in the
Indenture. Each obligation to pay Additional Interest shall be deemed to accrue
from and including the day following the applicable Event Date.
Notwithstanding anything to the contrary in this Section 2.5, the
Company and the Guarantors shall not be required to pay Additional Interest to a
Holder of Registrable Securities if
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(i) the Company is in compliance with Section 2.1(ii)(a) hereof and, with
respect to such Registrable Securities, such Holder failed to comply with its
obligations to make the representations set forth in Section 2.1(v) hereof or
(ii) the Company is in compliance with the first Sentence of Section 2.2(d)
hereof and such Registrable Securities are not included in a Shelf Registration
because such Holder failed to provide the information required to be furnished
by it pursuant to the first sentence of Section 2.2(d) hereof.
3. Registration Procedures.
-----------------------
In connection with the obligations of the Company with respect to
Registration Statements pursuant to Sections 2.1 and 2.2 hereof, the Company
shall:
(a) prepare and file with the SEC, a Registration Statement, within
the relevant time period specified in Section 2, on the appropriate form under
the 1933 Act, which form (i) shall be selected by the Company, (ii) shall, in
the case of a Shelf Registration, be available for the sale of the Registrable
Securities by the selling Holders thereof, (iii) shall comply as to form in all
material respects with the requirements of the applicable form and include or
incorporate by reference all financial statements required by the SEC to be
filed therewith or incorporated by reference therein, and (iv) shall comply in
all respects with the requirements of Regulation S-T under the 1933 Act, and use
their best efforts to cause such Registration Statement to become effective and
remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under applicable
law to keep such Registration Statement effective for the applicable period; and
cause each Prospectus to be supplemented by any required prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the 1933 Act and comply with the provisions of
the 1933 Act, the 1934 Act and the rules and regulations thereunder applicable
to them with respect to the disposition of all securities covered by each
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the selling Holders thereof
(including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities, at least five business days prior to filing, that a
Shelf Registration Statement with respect to the Registrable Securities is being
filed and advising such Holders that the distribution of Registrable Securities
will be made in accordance with the method selected by the Majority Holders
participating in the Shelf Registration; (ii) furnish to each Holder of
Registrable Securities and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter may
reasonably request, including financial statements and schedules and, if the
Holder so requests, all exhibits in order to facilitate the public sale or other
disposition of the Registrable Securities; and (iii) hereby consent to the use
of the Prospectus or any amendment or supplement thereto by each
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<PAGE>
of the selling Holders of Registrable Securities in connection with the offering
and sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto;
(d) use its best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of Registrable Securities covered by a Registration
Statement and each underwriter of an underwritten offering of Registrable
Securities shall reasonably request by the time the applicable Registration
Statement is declared effective by the SEC, and do any and all other acts and
things which may be reasonably necessary or advisable to enable each such Holder
and underwriter to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however, that none of the
Company or any Guarantor shall be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), or (ii) take any
action which would subject it to general service of process of taxation in any
such jurisdiction where it is not then so subject;
(e) notify promptly each holder of Registrable Securities under a
Shelf Registration or any Participating Broker-Dealer who has notified the
Company that it is utilizing the Exchange Offer Registration Statement as
provided in paragraph (f) below and, if requested by such Holder or
Participating Broker-Dealer, confirm such advice in writing promptly (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request by the
SEC or any state securities authority for post-effective amendments and
supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iv) in the case of a Shelf Registration, if,
between the effective date of a Registration Statement and the closing of any
sale of Registrable Securities covered thereby, the representations and
warrantees of the Company contained in any underwriting agreement, securities
sales agreement or other similar agreement, if any, relating to the offering
cease to be true and correct in all material respects, (v) of the happening of
any event or the discovery of any facts during the period a Shelf Registration
Statement is effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or which
requires the making of any changes in such Registration Statement or Prospectus
in order to make the statements therein not misleading, (vi) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Registrable Securities or the Exchange Securities, as the
case may be, for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose and (vii) of any determination by the Company
that a post-effective amendment to such Registration Statement would be
appropriate;
(f) in the case of the Exchange Offer Registration Statement (i)
include the Exchange Offer Registration Statement a section entitled "Plan of
Distribution" which section shall be reasonably acceptable to Merrill Lynch on
behalf of the Participating Broker-Dealers, and which shall contain a summary
statement of the positions taken or policies made by the staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that holds
Registrable
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Securities acquired for its own account as a result of market-making activities
or other trading activities and that will be the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of Exchange Securities to be received by such
broker-dealer in the Exchange Offer, whether such positions or policies have
been publicly disseminated by the staff of the SEC or such positions or
policies, in the reasonable judgment of Merrill Lynch on behalf of the
Participating Broker-Dealers and its counsel, represent the prevailing views of
the staff of the SEC, including a statement that any such broker-dealer who
receives Exchange Securities for Registrable Securities pursuant to the Exchange
Offer may be deemed a statutory underwriter and must deliver a prospectus
meeting the requirements of the 1933 Act in connection with any resale of such
Exchange Securities, (ii) furnish, for a period of 180 days after the
consummation of the Exchange offer, to each Participating Broker-Dealer who has
delivered to the Company the notice referred to in Section 3(e), without charge,
as many copies of each Prospectus included in the Exchange Offer Registration
Statement, including any preliminary prospectus, and any amendment or supplement
thereto, as such Participating Broker-Dealer may reasonably request, (iii)
hereby consent to the use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement thereto, by any Person
subject to the prospectus delivery requirements of the SEC, including all
Participating Broker-Dealers, in connection with the sale or transfer of the
Exchange Securities covered by the Prospectus or any amendment or supplement
thereto, and (iv) include in the transmittal letter or similar documentation to
be executed by an exchange offeree in order to participate in the Exchange Offer
(x) the following provision:
"If the exchange offeree is a broker-dealer holding Registrable Securities
acquired for its own account as a result of market-making activities or
other trading activities, it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of Exchange
Securities received in respect of such Registrable Securities pursuant to
the Exchange Offer;" and
(y) a statement to the effect that a broker-dealer by making the acknowledgment
described in clause (x) and by delivering a Prospectus in connection with the
exchange of Registrable Securities, the broker-dealer will not be deemed to
admit that it is an underwriter within the meaning of the 1933 Act;
(g) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (ii) in the case of a Shelf Registration, furnish counsel
for the Holders of Registrable Securities copies of any comment letters received
from the SEC or any other request by the SEC or any state securities authority
for amendments or supplements to a Registration Statement and Prospectus or for
additional information;
(h) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as soon as
practicable;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, and each underwriter, if any, without charge, at least
one conformed copy of each
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Registration Statement and any post-effective amendment thereto, including
financial statements and schedules (without documents incorporated therein by
reference and all exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, to the extent that any
Registrable Securities are held in certificated form and not represented by
global certificates, cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends; and enable such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in such names
as the selling Holders or the underwriters, if any, may reasonably request at
least three business days prior to the closing of any sale of Registrable
Securities;
(k) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts, each as contemplated by Sections 3(e)(v)
and 3(e)(vi) hereof, as promptly as practicable after the occurrence of such an
event, use its best efforts to prepare a supplement or post-effective amendment
to the Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other document so that, as
thereafter delivered to the purchasers of the Registrable Securities or
Participating Broker-Dealers, such Prospectus will not contain at the time of
such delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or will remain so
qualified. At such time as such public disclosure is otherwise made or the
Company determines that such disclosure is not necessary, in each case to
correct any misstatement of a material fact or to include any omitted material
fact, the Company agrees promptly to notify each Holder of such determination
and furnish each Holder such number of copies of the Prospectus as amended or
supplemented, as such Holder may reasonably request;
(l) in the case of a Shelf Registration, a reasonable time prior to
the filing of any Registration Statement, any Prospectus, any amendment to a
Registration Statement or amendment or supplement to a Prospectus, provide
copies of such document to the Initial Purchasers on behalf of such Holders; and
make representatives of the Company as shall be reasonably requested by the
Holders of Registrable Securities, or the Initial Purchasers on behalf of such
Holders, available for discussion of such document;
(m) obtain CUSIP numbers, Euroclear and Cedel Common Code Nos. and
ISINs for all Exchange Securities, Private Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement, and provide the Trustee with certificates for the
Exchange Securities, Private Exchange Securities or the Registrable Securities,
as the case may be, in a form eligible for deposit with the Depositary;
(n) (i) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be, (ii) cooperate with the Trustee and the Holders
to effect such changes to the Indenture as may be
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<PAGE>
required for the Indenture to be so qualified in accordance with the terms of
the TIA and (iii) execute, and use its best efforts to cause the Trustee to
execute, all documents as may required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable the Indenture to
be so qualified in a timely manner;
(o) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and appropriate
actions in order to expedite or facilitate the disposition of such Registrable
Securities and in such connection whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration:
(i) make such representations and warranties to the Holders of
such Registrable Securities and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to underwriters
in similar underwritten offerings as may be reasonably requested by
them;
(ii) obtain opinions of counsel to the Company and the
Guarantors in customary form, substance and scope;
(iii) obtain "cold comfort" letters from the Company's
independent certified public accountants (and, if necessary, any other
independent certified public accountants of any Guarantor or
subsidiary of the Company or of any business acquired by the Company
for which financial statements are, or are required to be, included in
the Registration Statement) in customary form, only if permitted by
and subject to the receipt of documentation contemplated by the
Statement on Auditing Standards No. 72 of the American Institute of
Certified Public Accounts), covering matters of the type customarily
covered in "cold comfort" letters to underwriters in connection with
similar underwritten offerings;
(iv) enter into a securities sales agreement with the Holders
and an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose of
soliciting purchases of Registrable Securities, which agreement shall
be in form, substance and scope customary for similar offerings;
(v) if an underwriting agreement is entered into, cause the
same to set forth indemnification provisions and procedures
substantially equivalent to the indemnification provisions and
procedures set forth in Section 4 hereof with respect to the
underwriters and all other parties to be indemnified pursuant to said
Section or, at the request of any underwriters, in the form
customarily provided to such underwriters in similar types of
transactions; and
(vi) deliver such documents and certificates as may be
reasonably requested and as are customarily delivered in similar
offerings to the Holders of a
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majority in principal amount of the Registrable Securities being sold
and the managing underwriters, if any.
The above shall be done at (i) the effectiveness of such Registration Statement
(and each post-effective amendment thereto) and (ii) each closing under any
underwriting or similar agreement as and to the extent required thereunder, or
as otherwise provided under any underwriting or similar agreement;
(p) in the case of a Shelf Registration or if a Prospectus is
required to be delivered by any Participating Broker-Dealer in the case of an
Exchange Offer, subject to appropriate confidentiality agreements, make
available for reasonable inspection by representatives of the Holders of the
Registrable Securities, any underwriters participating in any disposition
pursuant to a Shelf Registration Statement and any counsel or accountant
retained by any of the foregoing, all financial and other records, pertinent
corporate documents and properties of the Company and the Guarantors reasonably
requested by any such persons, and cause the respective officers, directors,
employees, and any other agents of the Company and the Guarantors to supply all
information reasonably requested by any such representative, underwriter,
special counsel or accountant in connection with a Registration Statement, and
make such representatives of the Company and any of the Guarantors available for
discussion of such documents as shall be reasonably requested by the Initial
Purchasers;
(q) in the case of a Shelf Registration, a reasonable time prior to
filing any Shelf Registration Statement, any Prospectus forming a part thereof,
any amendment to such Shelf Registration Statement or amendment or supplement to
such Prospectus, provide copies of such document to the Holders of Registrable
Securities, to the Initial Purchasers, to counsel for the Holders and to the
underwriter or underwriters of an underwritten offering of Registrable
Securities, if any, make such changes in any such document prior to the filing
thereof as the Initial Purchasers, the counsel to the Holders or the underwriter
or underwriters reasonably request and not file any such document in a form to
which the Majority Holders, the Initial Purchasers on behalf of the Holders of
Registrable Securities, counsel for the Holders of Registrable Securities or any
underwriter shall not have previously been advised and furnished a copy of or to
which the Majority Holders, the Initial Purchasers on behalf of the Holders of
Registrable Securities, counsel to the Holders of Registrable Securities or any
underwriter shall reasonably object, and make the representatives of the Company
and the Guarantors available for discussion of such document as shall be
reasonably requested by the Holders of Registrable Securities, the Initial
Purchasers on behalf of such Holders, counsel for the Holders of Registrable
Securities or any underwriter.
(r) in the case of the Shelf Registration, use its best efforts to
cause all Registrable Securities to be listed on any securities exchange on
which similar debt securities issued by the Company are then listed if requested
by the Majority Holders, or if requested by the underwriter or underwriters of
an underwritten offering of Registrable Securities, if any;
(s) in the case of a Shelf Registration, use its best efforts to
cause the Registrable Securities to be rated by the appropriate rating agencies,
if so requested by the
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Majority Holders, or if requested by the underwriter or underwriters of an
underwritten offering of Registrable Securities, if any;
(t) otherwise comply with all applicable rules and regulations of the
SEC and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder;
(u) cooperate and assist in any filings required to be made with the
NASD and, in the case of a Shelf Registration, in the performance of any due
diligence investigation by any underwriter and its counsel (including any
"qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD); and
In the case of a Shelf Registration Statement or the notification of
the Company by Participating Broker-Dealers seeking to sell Exchange Securities
and required to deliver Prospectuses that will be utilizing the Prospectus
contained in the Exchange Offer Registration Statement as provided in Section
3(f) hereof, each Holder agrees that, upon receipt of any notice from the
Company of (i) the happening of any event of the kind described in clause (iii),
(v) or (vi) of Section 3(e) hereof or (ii) the exercise of the Company's right,
under Section 2.2(b), to postpone the effectiveness, supplementing or amending
of any such Registration Statement, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the applicable Registration
Statement until such Holder receives the copies of the supplemented or amended
prospectus contemplated by Section 3(k) hereof or until such Holder is advised
in writing (the "Advice") by the Company that the use of the applicable
prospectus may be resumed, and, if so directed by the Company, such Holder will
deliver to the Company (at the Company's expense) all copies in such Holder's
possession, other than permanent file copies, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice; provided
that, with respect to the happening of any event of the kind described in
Section 3(e)(iii) or (vi) hereof that relates to a state securities authority
or authorities or a particular jurisdiction or jurisdictions, respectively, the
restrictions contained in this paragraph on a Holder shall apply only with
respect to the disposition of Registrable Securities in the jurisdiction
governed by such state securities authority or authorities (with respect to
events under Section 3(e)(iii) hereof) or in the jurisdiction with respect to
which the Company has received a notice of suspension of the qualification of
Registrable Securities or Exchange Securities for sale, or the initiation or
threatening thereof, (with respect to events under Section 3(e)(vi), and
provided further, that in such cases, such Holder shall not be required to
return to the Company copies of the Prospectus covering the Registrable
Securities.
If any of the Registrable Securities covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the underwriter or
underwriters and manager or managers that will manage such offering will be
selected by the Majority Holders of such Registrable Securities included in such
offering and shall be acceptable to the Company. No Holder of Registrable
Securities may participate in any underwritten registration hereunder unless
such Holder (a) agrees to sell such Holder's Registrable Securities on the basis
provided in any
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underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting arrangements.
4. Indemnification; Contribution.
-----------------------------
(a) The Company agrees to indemnify and hold harmless the Initial
Purchasers, each Holder, each Participating Broker-Dealer, each Person who
participates as an underwriter (any such Person being an "Underwriter") and each
Person, if any, who controls any Holder of Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment or supplement thereto) pursuant to which
Exchange Securities or Registrable Securities were registered under the
1933 Act, including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading,
or arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
4(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by any indemnified
party), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished
20
<PAGE>
to the Company by the Holder or Underwriter expressly for use in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto), and provided further, that the Company will not be liable
to any Person with respect to any preliminary Prospectus to the extent that the
Company shall sustain the burden of proving that any such loss, liability,
claim, damage or expense resulted from the fact that such Person failed to send
or give, at or prior to the closing of the underwritten offering of Registrable
Securities, a copy of the final Prospectus, as then amended or supplemented if
the Company has previously furnished copies thereof (sufficiently in advance of
such closing to allow for distribution by such closing) to such Person and the
loss, liability, claim, damage or expense of such Person resulted solely from an
untrue statement or omission of a material fact contained in or omitted from the
preliminary Prospectus which was corrected in the final Prospectus as, if
applicable, amended or supplemented prior to such closing and the final
Prospectus was required by law to be delivered by such Person at or prior to the
written confirmation of a sale.
(b) Each Holder severally, but not jointly, agrees to indemnify and
hold harmless the Company, the Guarantors, the Initial Purchasers, each
Underwriter and the other selling Holders, and each of their respective
directors and officers, and each Person, if any, who controls the Company, the
Guarantors, the Initial Purchasers, any Underwriter or any other selling Holder
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 4(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Shelf Registration Statement (or any amendment thereto) or any
Prospectus included therein (or any amendment or supplement thereto) in reliance
upon and in conformity with written information with respect to such Holder
furnished to the Company by such Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or such Prospectus (or any
amendment or supplement thereto); provided, however, that no such Holder shall
be liable for any claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Registrable Securities pursuant to such
Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure so to notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying party or parties be liable
for the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any
21
<PAGE>
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4 (whether or
not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request; (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 4 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute, to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and the Holders and the
Initial Purchasers on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and the Holders and
the Initial Purchasers on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, the Guarantors, the Holders or the
Initial Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Guarantors, the Holders and the Initial Purchasers
agree that it would not be just and equitable if contribution pursuant to this
Section 4 were determined by pro rata allocation (even if the Initial Purchasers
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 4. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 4 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
22
<PAGE>
Notwithstanding the provisions of this Section 4, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities sold by it were offered exceeds the amount
of any damages which such Initial Purchaser has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission.
No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls an
Initial Purchaser or Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Initial Purchaser or Holder, and each director of the Company or any of the
Guarantors, and each Person, if any, who controls the Company or any of the
Guarantors within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company and the
Guarantors. The Initial Purchasers' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the principal amount of
Securities set forth opposite their respective names in Schedule A to the
Purchase Agreement and not joint.
5. Miscellaneous.
-------------
5.1 Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the 1934 Act, the Company
covenants that it will file the reports required to be filed by it under the
1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder. If the Company ceases to be so
required to file such reports, the Company covenants that it will upon the
request of any Holder of Registrable Securities (a) make publicly available such
information as is necessary to permit sales pursuant to Rule 144 under the 1933
Act, (b) deliver such information to a prospective purchaser as is necessary to
permit sales pursuant to Rule 144A under the 1933 Act and it will take such
further action as any Holder of Registrable Securities may reasonably request,
and (c) take such further action that is reasonable in the circumstances, in
each case, to the extent required from time to time to enable such Holder to
sell its Registrable Securities without registration under the 1933 Act within
the limitation of the exemptions provided by (i) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, (ii) Rule 144A under the 1933 Act,
as such Rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
5.2 No Inconsistent Agreements. None of the Company or any of the
Guarantors have entered into and the Company and the Guarantors will not after
the date of this Agreement enter into any agreement which is inconsistent with
the rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. The
23
<PAGE>
rights granted to the Holders hereunder do not and will not for the term of this
Agreement in any way conflict with the rights granted to the holders of the
Company's or any of the Guarantors' other issued and outstanding securities
under any such agreements.
5.3 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or departure.
5.4 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered first-
class mail, telex, telecopier, or any courier guaranteeing overnight delivery
(a) if to a Holder, at the most current address given by such Holder to the
Company by means of a notice given in accordance with the provisions of this
Section 5.4, which address initially is the address set forth in the Purchase
Agreement with respect to the Initial Purchasers; and (b) if to the Company, or
any of the Guarantors, initially at the Company's address set forth in the
Purchase Agreement, and thereafter at such other address of which notice is
given in accordance with the provisions of this Section 5.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two business days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and on the next
business day if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture, at the address specified in such Indenture.
5.5 Successor and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement, including the restrictions on resale set forth in this Agreement and,
if applicable, the Purchase Agreement, and such person shall be entitled to
receive the benefits hereof.
24
<PAGE>
5.6 Third Party Beneficiaries. The Initial Purchasers (even if the
Initial Purchasers are not Holders of Registrable Securities) shall be third
party beneficiaries to the agreements made hereunder among the Company, on the
one hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made hereunder among the Company, on the one hand,
and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights hereunder.
5.7 Specific Enforcement. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under Sections 2.1 through
2.4 hereof may result in material irreparable injury to the Initial Purchasers
or the Holders for which there is no adequate remedy at law, that it would not
be possible to measure damages for such injuries precisely and that, in the
event of any such failure, the Initial Purchasers or any Holder may obtain such
relief as may be required to specifically enforce the Company's obligations
under Sections 2.1 through 2.4 hereof.
5.8 Restriction on Resales. Until the expiration of two years after
the original issuance of the Securities, the Company and the Guarantors will
not, and will cause their "affiliates" (as such term is defined in Rule
144(a)(1) under the 1933 Act) not to, resell any Securities which are
"restricted securities" (as such term is defined under Rule 144(a)(3) under the
1933 Act) that have been reacquired by any of them and shall immediately upon
any purchase of any such Securities submit such Securities to the Trustee for
cancellation.
5.9 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.10 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.12 Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is hold
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
25
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FEDERAL-MOGUL CORPORATION
By: /s/ David A. Bozynski
--------------------------------------------
Name: David A. Bozynski
Title: Vice President and Treasurer
Confirmed and accepted as
of the date first above
written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CHASE SECURITIES INC.
BY: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Robert J. Schmiedeler
--------------------------
Name: Robert J. Schmiedeler
Title: Director
26
<PAGE>
EXHIBIT 5
---------
[FEDERAL-MOGUL CORPORATION LETTERHEAD]
June 29, 1999
Federal Mogul Corporation
26555 Northwestern Highway
Southfield, Michigan 48034
Re: 7-3/8% Notes Due 2006
7-1/2% Notes Due 2009
Ladies and Gentlemen:
I am the Associate General Counsel and Secretary of Federal-Mogul
Corporation, a Michigan corporation (the "Company"). Reference is made to the
Registration Statement on Form S-4 (the "Registration Statement") being filed by
the Company and Federal-Mogul Dutch Holdings Inc., a Delaware corporation,
Federal-Mogul Global Inc., a Delaware corporation, Federal-Mogul U.K. Holdings
Inc., a Delaware corporation, Carter Automotive Company, Inc., a Delaware
corporation, Federal-Mogul Venture Corporation, a Nevada corporation, Federal-
Mogul World Wide, Inc., a Michigan corporation, Federal-Mogul Global Properties,
Inc., a Michigan corporation, Felt Products Mfg. Co., a Delaware corporation,
F-M UK Holding Limited, a United Kingdom corporation, Federal-Mogul Ignition
Company, a Delaware corporation, Federal-Mogul Products, Inc., a Missouri
corporation and Federal-Mogul Aviation, Inc., a Delaware corporation
(collectively, the "Guarantors") with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), relating to the registration of $400,000,000 aggregate principal amount
of the Company's 7-3/8% Notes due 2006 and $600,000,000 aggregate principal
amount of the Company's 7-1/2% Notes due 2009 (collectively, the "Exchange
Notes") for the purpose of effecting an exchange offer (the "Exchange Offer") of
the Exchange Notes for the Company's outstanding 7-3/8% Notes due 2006 and the
Company's outstanding 7-1/2% Notes due 2009 (collectively, the "Old Notes"). The
Guarantors will issue guarantees (collectively, the "Guarantees") of the
obligations of the Company under the Exchange Notes. The Exchange Notes and the
Guarantees are to be issued pursuant to the Indenture dated as of January 20,
1999 (the "Indenture") among the Company, the Guarantors and The Bank of New
York, as trustee (the "Trustee").
I have reviewed the originals or copies certified or otherwise
identified to my satisfaction of all such corporate records of the Company and
such other instruments and other certificates of public officials, officers and
representatives of the Company and such other persons, and I have made such
investigations of law, as I have deemed appropriate as a basis for the opinions
expressed below.
<PAGE>
In rendering the opinions expressed below, I have assumed the
authenticity of all documents submitted to me as originals and the conformity to
the originals of all documents submitted to me as copies. In addition, I have
assumed and have not verified the accuracy as to factual matters of each
document I have reviewed.
Based upon the foregoing, and assuming that (i) the Registration
Statement and any amendments thereto (including post-effective amendments)
remains effective and complies with all applicable laws at the time the Exchange
Notes and the Guarantees (together, the "Offered Securities") are offered or
issued as contemplated by the Registration Statement; (ii) all Offered
Securities will be offered, issued and delivered in compliance with applicable
federal and state laws and in the manner stated in the Registration Statement
and the prospectus referred to therein; (iii) the Company and each Guarantor
will authorize the offering and issuance of the Offered Securities and the terms
and conditions thereof and will take any other appropriate additional corporate
action; and (iv) certificates representing the Offered Securities will have been
duly executed and delivered and, to the extent required, authenticated, I am of
the opinion that:
1. The Company and each of the Guarantors is a corporation
existing and in good standing under the laws of its jurisdiction of
incorporation.
2. The Company had corporate power and authority to execute and
deliver the Indenture at the time of its execution and delivery and has
corporate power and authority to authorize and issue the Exchange Notes.
3. Each of the Guarantors had corporate power and authority to
execute and deliver the Indenture at the time of its execution and delivery and
has corporate power and authority to authorize and issue the Guarantee to be
issued by such Guarantor.
4. The Exchange Notes will be legally issued and binding
obligations of the Company, and each Guarantee will be the legally issued and
binding obligation of the Guarantor issuing such Guarantee (except to the extent
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws affecting
the enforcement of creditors' rights generally and by the effect of general
principles of equity, regardless of whether enforceability is considered in a
proceeding in equity or at law) when (i) the Registration Statement, as finally
amended, shall have become effective under the Securities Act and the Indenture
shall have been qualified under the Trust Indenture Act of 1939, as amended,
(ii) the Old Notes shall have been tendered to and accepted by the Company and
(iii) the Exchange Notes shall have been duly executed and authenticated, and
the Guarantees shall have been duly executed, as provided in the Indenture and
the resolutions of the Board of Directors (or authorized committee thereof) of
the Company and each of the Guarantors authorizing the foregoing.
I do not find it necessary for purposes of this opinion to cover, and
accordingly I express no opinion as to, the application of the securities or
blue sky laws of the various states to the issuance of the Exchange Notes and
the Guarantees. For purposes of the opinion in
<PAGE>
paragraph 1, I have relied exclusively upon recent certificates issued by the
appropriate government official of the jurisdiction of incorporation of the
Company and each Guarantor.
The foregoing opinions are limited to the federal laws of the United
States of America.
I hereby consent to the use of my name in the prospectus constituting
a part of the Registration Statement under the heading "Legal Matters" as
counsel for the Company who has passed upon the legality of the Offered
Securities being registered by the Registration Statement and as having prepared
this opinion, and to the use of this opinion as a part (Exhibit 5) of the
Registration Statement. In giving such consent, I do not thereby admit that I am
within the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Commission thereunder.
Sincerely,
/s/ David M. Sherbin
----------------------------------------
David M. Sherbin, Esq.
Associate General Counsel
<PAGE>
Exhibit 12.1
FEDERAL-MOGUL CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(unaudited)
(In thousands except for ratios)
<TABLE>
<CAPTION>
Three months
ended Year ended December 31,
March 31, -------------------------------------------------------
1999 1998 1997 1996 1995 1994
------------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Fixed charges:
Interest expense $ 68,711 $193,607 $ 32,000 $ 42,600 $37,300 $ 21,200
Estimated interest portion of rents 1,937 15,768 9,700 11,267 11,333 8,300
Amortization of debt issuance expense 2,189 10,393 1,288 1,827 1,803 1,053
-------- -------- -------- --------- ------- --------
Total fixed charges $ 72,837 $219,768 $ 42,988 $ 55,694 $50,436 $ 30,553
Earnings:
Earnings before fixed charges $106,600 $185,500 $ 99,500 $(228,700) $(3,300) $102,100
Fixed charges 72,837 219,768 42,988 55,694 50,436 30,553
-------- -------- -------- --------- ------- --------
Adjusted earnings $179,347 $405,268 $142,488 $(173,006) $47,136 $132,653
Ratio of Earnings to Fixed Charges 2.464 1.844 3.315 (3.106) 0.935 4.342
======== ======== ======== ========= ======= ========
</TABLE>
<PAGE>
Exhibit 12.2
FEDERAL-MOGUL CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED STOCK DIVIDENDS
(unaudited)
(In thousands except ratios)
<TABLE>
<CAPTION>
Three months
ended Year ended December 31,
March 31, ---------------------------------------------------------
1999 1998 1997 1996 1995 1994
------------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Fixed charges:
Interest expense** $ 68,711 $ 193,607 $ 32,000 $ 42,600 $37,300 $ 21,200
Distributions on preferred stock* 1,221 5,655 10,450 16,336 16,714 17,182
Estimated interest portion of rents 1,937 15,768 9,700 11,267 11,333 8,300
Amortization of debt issuance expense 2,189 10,393 1,288 1,827 1,803 1,053
---------- ---------- -------- --------- ------- --------
Total fixed charges $ 74,058 $ 225,423 $ 53,438 $ 72,030 $67,150 $ 47,735
Earnings:
Earnings before fixed charges $ 106,600 $ 185,500 $ 99,500 $(228,700) $(3,300) $102,100
Fixed charges 74,058 225,423 53,438 72,030 67,150 47,735
---------- ---------- -------- --------- ------- --------
Adjusted earnings $ 180,658 $ 410,923 $152,938 $(156,670) $63,850 $149,835
Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends 2.439 1.822 2.862 (2.175) 0.951 3.139
========== ========== ======== ========= ======= ========
</TABLE>
* Preferred stock amounts are calculated in the following manner in
accordance with SEC guidelines.
Preferred Stock Dividend Requirements
----------------------------------------------------
100% less Effective Income Tax Rate (36.7% for 1998)
** Includes amortization of debt issuance expense in 1998.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-4 and related Prospectus for the exchange up to
$400,000,000 of new 7 3/8% notes due 2006, for any and all outstanding 7 3/8%
notes due 2006 and up to $600,000,000 of new 7 1/2% notes due 2009, for any and
all outstanding 7 1/2% notes due 2009 to the incorporation by reference therein
of our reports dated: February 3, 1999, except for note 23, as to which the date
is February 24, 1999, with respect to the consolidated financial statements and
schedule of Federal-Mogul Corporation; January 29, 1999 with respect to the
consolidated financial statements of Federal-Mogul Ignition Company (and the
Cooper Automotive division of Cooper Industries, Inc., its predecessor); January
29, 1999 with respect to the consolidated financial statements of Federal-Mogul
Products, Inc. (and the Moog Automotive division of Cooper Industries, Inc., its
predecessor); and February 12, 1999 with respect to the financial statements of
Federal-Mogul Aviation, Inc. (and Champion Aviation, Inc., a subsidiary of
Cooper Industries, Inc., its predecessor) all of which are included in its
Annual Report on Form 10-K for the year ended December 31, 1998; to the
incorporation by reference therein of our report dated October 1, 1998, with
respect to the combined financial statements of the Cooper Automotive and Moog
Automotive Divisions of Cooper Industries, Inc. as of December 31, 1997 and 1996
and for the three years then ended, included in Federal-Mogul Corporation's Form
8-K/A dated November 24, 1998; and to the incorporation by reference therein of
our report dated February 13, 1998 with respect to the financial statements of
The Operating Businesses of the Fel-Pro Group as of December 28, 1997 and
December 29, 1996 and for the three years in the period ended December 28, 1997,
included in Federal-Mogul Corporation's Form 8-K/A dated April 7, 1998, filed
with the Securities and Exchange Commission.
/s/ Ernst and Young LLP
June 30, 1999
Detroit, Michigan
<PAGE>
Exhibit 23.2
[KPMG LOGO]
KPMG Audit Plc
PO Box 695 Tel: +44 (0) 171 311 1000
6 Salsbury Square Fax: +44 (0) 171 311 3311
London EC4V 8BB Telex 8811541 KPMGLO G
United Kingdom DX 38050 Blackfriars
The Board of Directors
Federal-Mogul Corporation
26555 Northwestern Highway
Southfield Our ref
Michigan 48034
United States of America
29 June 1999
Dear Sirs
Registration Statement on Form S-4 and related Prospectus ("Registration
Statement")
We consent to the incorporation by reference in this Registration Statement
dated 29 June 1999 of Federal-Mogul Corporation of our report dated 17 February
1998 in respect of the consolidated balance sheets of T&N plc and its
subsidiaries at 31 December 1997 and 31 December 1996, and the related
consolidated profit and loss accounts, reconciliations of movements in
shareholders' funds and consolidated cash flow statements for each of the years
in the three year period ended 31 December 1997 which appears in the Form 8-K/A
of Federal Mogul Corporation dated 7 April 1998 and to the reference to our firm
under the heading "Experts" in this Registration Statement dated 29 June 1999.
Yours faithfully
/s/ KPMG Audit Plc
- ---------------------------
KPMG Audit Plc
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints David M. Sherbin, Associate General Counsel and
Secretary of Federal-Mogul Corporation, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully and to all intents and
purposes as he might or would do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent or any of them, or their or his substitute,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ----------------------------------- ------------------------------------- ---------------------
<S> <C> <C>
Chairman of the Board, Chief
/s/ Richard A. Snell Executive Officer and Director
- ----------------------------------- (Principal Executive Officer) June 23, 1999
Richard A. Snell
Executive Vice President and Chief
/s/ Thomas W. Ryan Financial Officer June 23, 1999
- ----------------------------------- (Principal Financial Officer)
Thomas W. Ryan
/s/ Kenneth P. Slaby Vice President and Controller June 23, 1999
- ----------------------------------- (Principal Accounting Officer)
Kenneth P. Slaby
/s/ John J. Fannon June 23, 1999
- ----------------------------------- Director
John J. Fannon
/s/ Roderick M. Hills Director June 23, 1999
- -----------------------------------
Roderick M. Hills
/s/ Paul Scott Lewis Director June 23, 1999
- -----------------------------------
Paul Scott Lewis
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Antonio Madero Director June 23, 1999
- -----------------------------------
Antonio Madero
/s/ Robert S. Miller, Jr. Director June 23, 1999
- -----------------------------------
Robert S. Miller, Jr.
/s/ John C. Pope Director June 23, 1999
- -----------------------------------
John C. Pope
/s/ Geoffrey Whalen Director June 23, 1999
- -----------------------------------
Geoffrey Whalen
</TABLE>
<PAGE>
Exhibit 24.2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Gordon A. Ulsh, President and Chief Executive
Officer of Federal-Mogul Aviation, Inc., his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and to perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully and
to all intents and purposes as he might or would do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent or any of them, or their
or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Thomas W. Ryan Chief Financial Officer
- ------------------------- (Principal Financial Officer) June 23, 1999
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller June 23, 1999
- ------------------------- (Principal Accounting Officer)
Kenneth P. Slaby
/s/ Thomas W. Ryan Director June 23, 1999
- -------------------------
Thomas W. Ryan
</TABLE>
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Alan C. Johnson, President and Chief Executive
Officer of Carter Automotive Company, Inc., his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and to perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully and
to all intents and purposes as he might or would do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent or any of them, or their
or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Thomas W. Ryan Chief Financial Officer
- ------------------------- (Principal Financial Officer) June 23, 1999
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller June 23, 1999
- ------------------------- (Principal Accounting Officer)
Kenneth P. Slaby
/s/ Thomas W. Ryan Director June 23, 1999
- -------------------------
Thomas W. Ryan
</TABLE>
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas W. Ryan, Vice President and Chief
Financial Officer of Felt Products Mfg. Co., his true and lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and to perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully and
to all intents and purposes as he might or would do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent or any of them, or their
or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- -------------------------------- ---------------------------------------- ---------------------
<S> <C> <C>
Chief Executive Officer
/s/ Richard A. Snell (Principal Executive Officer) June 23, 1999
- --------------------------------
Richard A. Snell
/s/ Kenneth P. Slaby Controller June 23, 1999
- -------------------------------- (Principal Accounting Officer)
Kenneth P. Slaby
/s/ Wilhelm A. Schmelzer Director June 23, 1999
- --------------------------------
Wilhelm A. Schmelzer
/s/ Richard A. Snell Director June 23, 1999
- --------------------------------
Richard A. Snell
</TABLE>
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Alan C. Johnson, President and Chief Executive
Officer of Federal-Mogul Dutch Holdings, Inc., his true and lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and to perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully and
to all intents and purposes as he might or would do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent or any of them, or their
or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Thomas W. Ryan Chief Financial Officer
- ------------------------- (Principal Financial Officer) June 23, 1999
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller June 23, 1999
- ------------------------- (Principal Accounting Officer)
Kenneth P. Slaby
/s/ Thomas W. Ryan Director June 23, 1999
- -------------------------
Thomas W. Ryan
</TABLE>
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas W. Ryan, Vice President and Chief
Financial Officer of Federal-Mogul Global Properties, Inc., his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments to this Registration Statement, and to file the same, with
all exhibits thereto, and other documents in connection therewith with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and to perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully and
to all intents and purposes as he might or would do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent or any of them, or their
or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- -------------------------------- ---------------------------------------- ---------------------
<S> <C> <C>
President and Chief Operating Officer
/s/ Gordon Ulsh (Principal Executive Officer) June 23, 1999
- --------------------------------
Gordon Ulsh
/s/ Kenneth P. Slaby Controller June 23, 1999
- -------------------------------- (Principal Financial Officer)
Kenneth P. Slaby
/s/ Alan C. Johnson Director June 23, 1999
- --------------------------------
Alan C. Johnson
/s/ Gordon Ulsh Director June 23, 1999
- --------------------------------
Gordon Ulsh
/s/ David A. Bozynski Director June 23, 1999
- --------------------------------
David A. Bozynski
</TABLE>
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Gordon A. Ulsh, President and Chief Executive
Officer of Federal-Mogul Ignition Company, his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and to perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully and
to all intents and purposes as he might or would do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent or any of them, or their
or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Thomas W. Ryan Chief Financial Officer June 23, 1999
- ------------------------- (Principal Financial Officer)
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller June 23, 1999
- -------------------------------- (Principal Financial Officer)
Kenneth P. Slaby
</TABLE>
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Gordon A. Ulsh, President and Chief Executive
Officer of Federal-Mogul UK Holdings Limited, his true and lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and to perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully and
to all intents and purposes as he might or would do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent or any of them, or their
or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Thomas W. Ryan Chief Financial Officer
- ------------------------- (Principal Financial Officer) June 23, 1999
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller June 23, 1999
- -------------------------------- (Principal Accounting Officer)
Kenneth P. Slaby
/s/ Thomas W. Ryan Director June 23, 1999
- --------------------------------
Thomas W. Ryan
</TABLE>
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Alan C. Johnson, President and Chief Executive
Officer of Federal-Mogul Venture Corporation, his true and lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and to perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully and
to all intents and purposes as he might or would do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent or any of them, or their
or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- -------------------------------- ---------------------------------------- ---------------------
<S> <C> <C>
Chief Financial Officer
/s/ Thomas W. Ryan (Principal Executive Officer) June 23, 1999
- --------------------------------
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller June 23, 1999
- -------------------------------- (Principal Financial Officer)
Kenneth P. Slaby
/s/ Timothy W. Hefferon Director June 23, 1999
- --------------------------------
Timothy W. Hefferon
</TABLE>
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Alan C. Johnson, President and Chief Executive
Officer of Federal-Mogul World Wide, Inc., his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and to perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully and
to all intents and purposes as he might or would do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent or any of them, or their
or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- -------------------------------- ---------------------------------------- ---------------------
<S> <C> <C>
Chief Executive Officer
/s/ Richard A. Snell (Principal Executive Officer) June 23, 1999
- --------------------------------
Richard A. Snell
Chief Financial Officer
/s/ Thomas W. Ryan (Principal Financial Officer) June 23, 1999
- --------------------------------
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller June 23, 1999
- -------------------------------- (Principal Accounting Officer)
Kenneth P. Slaby
/s/ Thomas W. Ryan Director June 23, 1999
- --------------------------------
Thomas W. Ryan
</TABLE>
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Alan C. Johnson, President and Chief Executive
Officer of Federal-Mogul Global, Inc., his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully and to all intents and
purposes as he might or would do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent or any of them, or their or his substitute,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- -------------------------------- ---------------------------------------- ---------------------
<S> <C> <C>
Chief Financial Officer
/s/ Thomas W. Ryan (Principal Financial Officer) June 23, 1999
- --------------------------------
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller June 23, 1999
- -------------------------------- (Principal Accounting Officer)
Kenneth P. Slaby
/s/ Thomas W. Ryan June 23, 1999
- -------------------------------- Director
Thomas W. Ryan
</TABLE>
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Alan C. Johnson, President and Chief Executive
Officer of Federal-Mogul U.K. Holdings, Inc., his true and lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and to perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully and
to all intents and purposes as he might or would do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent or any of them, or their
or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- -------------------------------- ---------------------------------------- ---------------------
<S> <C> <C>
Chief Financial Officer
/s/ Thomas W. Ryan (Principal Executive Officer) June 23, 1999
- --------------------------------
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller June 23, 1999
- -------------------------------- (Principal Accounting Officer)
Kenneth P. Slaby
/s/ Thomas W. Ryan Director June 23, 1999
- --------------------------------
Thomas W. Ryan
</TABLE>
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Alan C. Johnson, President and Chief Executive
Officer of Federal-Mogul UK Holdings Limited, his true and lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and to perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully and
to all intents and purposes as he might or would do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent or any of them, or their
or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- -------------------------------- ---------------------------------------- ---------------------
<S> <C> <C>
Chief Executive Officer
/s/ Thomas W. Ryan (Principal Executive Officer) June 23, 1999
- --------------------------------
Thomas W. Ryan
/s/ Kenneth P. Slaby Controller June 23, 1999
- -------------------------------- (Principal Financial Officer)
Kenneth P. Slaby
/s/ Thomas W. Ryan Director June 23, 1999
- --------------------------------
Thomas W. Ryan
</TABLE>
<PAGE>
Exhibit 25
----------
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
FEDERAL-MOGUL CORPORATION
(Exact name of obligor as specified in its charter)
Michigan 38-0533580
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
FEDERAL-MOGUL DUTCH HOLDINGS INC.
(Exact name of obligor as specified in its charter)
Delaware 38-3399272
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
FEDERAL-MOGUL GLOBAL INC.
(Exact name of obligor as specified in its charter)
Delaware 38-3399269
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
FEDERAL-MOGUL U.K. HOLDINGS INC.
(Exact name of obligor as specified in its charter)
Delaware 38-3399273
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
<PAGE>
CARTER AUTOMOTIVE COMPANY, INC.
(Exact name of obligor as specified in its charter)
Delaware 43-1374271
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
FEDERAL MOGUL VENTURE CORPORATION
(Exact name of obligor as specified in its charter)
Nevada 38-2938561
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
FEDERAL-MOGUL WORLD WIDE, INC.
(Exact name of obligor as specified in its charter)
Michigan 38-3010848
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
FEDERAL-MOGUL GLOBAL PROPERTIES, INC.
(Exact name of obligor as specified in its charter)
Michigan 38-3394578
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
FELT PRODUCTS MFG. CO.
(Exact name of obligor as specified in its charter)
Delaware 36-1065910
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
F-M UK HOLDING LIMITED
(Exact name of obligor as specified in its charter)
United Kingdom Not Applicable
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
FEDERAL-MOGUL IGNITION COMPANY
(Exact name of obligor as specified in its charter)
Delaware 34-4203131
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
-2-
<PAGE>
FEDERAL-MOGUL PRODUCTS, INC.
(Exact name of obligor as specified in its charter)
Missouri 43-1130207
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
FEDERAL-MOGUL AVIATION, INC.
(Exact name of obligor as specified in its charter)
Delaware 76-0554121
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
26555 Northwestern Highway
Southfield, Michigan 48034
(Address of principal executive offices) (Zip code)
---------------------
7-3/8% Notes due 2006
7-1/2% Notes due 2009
(Title of the indenture securities)
-3-
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------
Name Address
<S> <C>
- ---------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York, N.Y.
New York 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-
29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-
44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-4-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 23rd day of June, 1999.
THE BANK OF NEW YORK
By: /s/ ILIANA A. ARCIPRETE
-----------------------------------------
Name: ILIANA A. ARCIPRETE
Title: ASSISTANT TREASURER
-5-
<PAGE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS In Thousands
<S> <C>
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency and
coin...................................................... $4,508,742
Interest-bearing balances.................................. 4,425,071
Securities:
Held-to-maturity securities................................ 836,304
Available-for-sale securities.............................. 4,047,851
Federal funds sold and Securities purchased
under agreements to resell................................. 1,743,269
Loans and lease financing receivables:
Loans and leases, net of unearned
income.................................................... 39,349,679
LESS: Allowance for loan and
lease losses.............................................. 603,025
LESS: Allocated transfer risk
reserve................................................... 15,906
Loans and leases, net of unearned income,
allowance, and reserve.................................... 38,730,748
Trading Assets.............................................. 1,571,372
Premises and fixed assets (including capitalized
leases).................................................... 685,674
Other real estate owned..................................... 10,331
Investments in unconsolidated subsidiaries and
associated companies....................................... 182,449
Customers' liability to this bank on acceptances
outstanding................................................ 1,184,822
Intangible assets........................................... 1,129,636
Other assets................................................ 2,632,309
-----------
Total assets................................................ $61,688,578
===========
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices........................................ $25,731,036
Noninterest-bearing........................................ 10,252,589
Interest-bearing........................................... 15,478,447
In foreign offices, Edge and Agreement
subsidiaries, and IBFs.................................... 18,756,302
Noninterest-bearing........................................ 111,386
Interest-bearing........................................... 18,644,916
Federal funds purchased and Securities sold
under agreements to repurchase............................. 3,276,362
Demand notes issued to the U.S.Treasury..................... 230,671
Trading liabilities......................................... 1,554,493
Other borrowed money:
With remaining maturity of one year or less................ 1,154,502
With remaining maturity of more than one year
through three years....................................... 465
With remaining maturity of more than three years........... 31,080
Bank's liability on acceptances executed and
outstanding................................................ 1,185,364
Subordinated notes and debentures........................... 1,308,000
Other liabilities........................................... 2,743,590
-----------
Total liabilities........................................... 55,971,865
===========
EQUITY CAPITAL
Common stock................................................ 1,135,284
Surplus..................................................... 764,443
Undivided profits and capital reserves...................... 3,807,697
Net unrealized holding gains (losses) on
available-for-sale securities.............................. 44,106
Cumulative foreign currency translation
adjustments................................................ ( 34,817)
-----------
Total equity capital........................................ 5,716,713
-----------
Total liabilities and equity capital........................ $61,688,578
===========
</TABLE>
<PAGE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Directors:
Thomas A. Reyni
Alan R. Griffith
Gerald L. Hassell
<PAGE>
EXHIBIT 99.1
LETTER OF TRANSMITTAL
FOR
7 3/8% NOTES DUE 2006
AND
7 1/2% NOTES DUE 2009
OF
FEDERAL-MOGUL CORPORATION
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON [ ],
1999 (THE "EXPIRATION DATE") UNLESS EXTENDED BY FEDERAL-MOGUL CORPORATION
EXCHANGE AGENT
THE BANK OF NEW YORK
<TABLE>
<CAPTION>
By Registered or Certified Mail: Facsimile Transmission Number: By Hand/Overnight Delivery
- ---------------------------------------------------------------------------------------------------
<S> <C> <C>
The Bank of New York Attn: Martha James The Bank of New York
101 Barclay, Floor 7E Reorganization Section 101 Barclay Street
New York, New York 10286 (212) 815-4699 Corporate Trust Services Window
Attn: Martha James Ground Level
Reorganization Section New York, New York 10286
Attn: Martha James
Reorganization Section
- ---------------------------------------------------------------------------------------------------
</TABLE>
(For Eligible Institutions Only)
Confirm by Telephone:
(212) 815-6335
For Information Call:
(212) 815-6335
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION VIA A FACSIMILE TRANSMISSION TO A NUMBER OTHER THAN
AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
The undersigned acknowledges receipt of the Prospectus dated [ ], 1999
(the "Prospectus") of Federal-Mogul Corporation (the "Company"), and this Letter
of Transmittal (the "Letter of Transmittal"), which together describe the
Company's offer (the "Exchange Offer") to exchange $1,000 in principal amount of
its new 7 3/8% Notes due 2006 (the "New 7 3/8% Notes") for each $1,000 in
principal amount of outstanding 7 3/8% Notes due 2006 (the "Old 7% Notes") and
$1,000 in principal amount of new 7 1/2% Notes due 2009 (the "New 7 1/2% Notes"
and together with the New 7 3/8% Notes, the "New Notes") for each $1,000 in
principal amount of outstanding 7 1/2% Notes due 2009 (the "Old 7 1/2% Notes"
and together with the Old 7 3/8% Notes, the "Old Notes"). The terms of the New
Notes are identical in all material respects (including principal amount,
interest rate and maturity) to the terms of the Old Notes for which they may be
exchanged pursuant to the Exchange Offer, except that the New Notes are freely
transferable by holders thereof (except as provided herein or in the Prospectus)
and are not subject to any covenant regarding registration under the Securities
Act of 1933, as amended (the "Securities Act").
The undersigned has checked the appropriate boxes below and signed this
Letter of Transmittal to indicate the action the undersigned desires to take
with respect to the Exchange Offer.
1
<PAGE>
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS CAREFULLY BEFORE
CHECKING ANY BOX BELOW
YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE
INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED.
QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS
AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT.
List below the Old Notes to which this Letter of Transmittal relates. If
the space provided below is inadequate, the Certificate Numbers and Principal
Amounts should be listed on a separate signed schedule affixed hereto.
DESCRIPTION OF OLD NOTES TENDERED HEREWITH
<TABLE>
<CAPTION>
AGGREGATE AGGREGATE
NAME(S) AND PRINCIPAL PRINCIPAL PRINCIPAL PRINCIPAL
ADDRESS(ES) OF AMOUNT OF AMOUNT AMOUNT OF AMOUNT
REGISTERED AGGREGATE OLD 7 3/8% REPRESENTED OLD 7 1/2% OF REPRESENTED
HOLDER(S) CERTIFICATE PRINCIPAL AMOUNT NOTES BY OLD 7 3/8% NOTES BY OLD 7 1/2%
(PLEASE FILL IN) NUMBER(S)* REPRESENTED BY TENDERED** NOTES* TENDERED** NOTES*
OLD NOTES*
<S> <C> <C> <C> <C> <C> <C>
Total
</TABLE>
* Need not be completed by book-entry holders.
** Unless otherwise indicated, the holder will be deemed to have tendered the
full aggregate principal amount represented by such Old Notes. See
instruction 2.
This Letter of Transmittal is to be used either if certificates
representing Old Notes are to be forwarded herewith or if delivery of Old Notes
is to be made by book-entry transfer to an account maintained by the Exchange
Agent at The Depository Trust Company, pursuant to the procedures set forth in
"Exchange Offer; Registration Rights--Procedures for Tendering Old Notes" in the
Prospectus. Delivery of documents to the book-entry transfer facility does not
constitute delivery to the Exchange Agent.
Holders whose Old Notes are not immediately available or who cannot deliver
their Old Notes and all other documents required hereby to the Exchange Agent on
or prior to the Expiration Date must tender their Old Notes according to the
guaranteed delivery procedure set forth in the Prospectus under the caption
"Exchange Offer; Registration Rights--Procedures for Tendering Old Notes."
2
<PAGE>
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK-ENTRY
TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
________________________________________
[ ] The Depository Trust Company
Account Number
________________________________________
Transaction Code Number
________________________________________
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING:
Name of Registered Holder(s)
__________________________________________________________
Name of Eligible Institution that Guaranteed Delivery
__________________________________________________________
Date of Execution of Notice of Guaranteed Delivery
__________________________________________________________
If Delivered by Book-Entry Transfer:
Account Number
_________________________________________________
[ ] CHECK HERE IF NEW NOTES ARE TO BE DELIVERED TO PERSON OTHER THAN PERSON
SIGNING THE LETTER OF TRANSMITTAL:
Name
_________________________________________________
(Please Print)
Address
_________________________________________________
(Including Zip Code)
[ ] CHECK HERE IF NEW NOTES ARE TO BE DELIVERED TO ADDRESS DIFFERENT FROM
THAT LISTED ELSEWHERE IN THIS LETTER OF TRANSMITTAL:
Address
_________________________________________________
(Including Zip Code)
3
<PAGE>
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THIS PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO:
Name
________________________________________________
Address
________________________________________________
4
<PAGE>
If the undersigned is not a broker-dealer, the undersigned represents that
it is not engaged in, and does not intend to engage in, a distribution of New
Notes. If the undersigned is a broker-dealer that will receive New Notes for its
own account in exchange for Old Notes that were acquired as result of market-
making activities or other trading activities, it acknowledges that it will
deliver a prospectus in connection with any resale of such New Notes; however,
by so acknowledging and by delivering a prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act. A broker-dealer may not participate in the Exchange Offer with respect to
Old Notes acquired other than as a result of market-making activities or other
trading activities. Any holder who is an "affiliate" of the Company or who has
an arrangement or understanding with respect to the distribution of the New
Notes to be acquired pursuant to the Exchange Offer, or any broker-dealer who
purchased Old Notes from the Company to resell pursuant to Rule 144A under the
Securities Act or any other available exemption under the Securities Act must
comply with the registration and prospectus delivery requirements under the
Securities Act.
5
<PAGE>
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the above-described principal amount
of the Old Notes indicated above. Subject to, and effective upon, the acceptance
for exchange of the Old Notes tendered herewith, the undersigned hereby
exchanges, assigns and transfers to, or upon the order of, the Company all
right, title and interest in and to such Old Notes. The undersigned hereby
irrevocably constitutes and appoints the Exchange Agent the true and lawful
agent and attorney-in-fact of the undersigned (with full knowledge that said
Exchange Agent acts as the agent of the Company, in connection with the Exchange
Offer) to cause the Old Notes to be assigned, transferred and exchanged. The
undersigned represents and warrants that it has full power and authority to
tender, exchange, assign and transfer the Old Notes and to acquire New Notes
issuable upon the exchange of such tendered Old Notes, and that, when the same
are accepted for exchange, the Company will acquire good and unencumbered title
to the tendered Old Notes, free and clear of all liens, restrictions, charges
and encumbrances and not subject to any adverse claim. The undersigned also
warrants that it will, upon request, execute and deliver any additional
documents deemed by the Exchange Agent or the Company to be necessary or
desirable to complete the exchange, assignment and transfer of tendered Old
Notes or transfer ownership of such Old Notes on the account books maintained by
the book-entry transfer facility. The undersigned further agrees that acceptance
of any and all validly tendered Old Notes by the Company and the issuance of New
Notes in exchange therefor shall constitute performance in full by the Company
of its obligations under the Registration Rights Agreement (as defined in the
Prospectus) and that the Company shall have no further obligations or
liabilities thereunder except as expressly provided for in said agreement.
The Exchange Offer is subject to certain conditions as set forth in the
Prospectus under the caption "The Exchange Offer; Registration Rights--Certain
Conditions to the Exchange Offer." The undersigned recognizes that as a result
of these conditions (which may be waived, in whole or in part, by the Company),
as more particularly set forth in the Prospectus, the Company may not be
required to exchange any of the Old Notes tendered hereby and, in such event,
the Old Notes not exchanged will be returned to the undersigned at the address
shown above. In addition, the Company may amend the Exchange Offer at any time
prior to the Expiration Date if any of the conditions set forth under "Exchange
Offer; Registration Rights--Certain Conditions to the Exchange Offer" occur.
By tendering, each holder of Old Notes represents that the New Notes
acquired in the exchange will be obtained in the ordinary course of such
holder's business, that such holder has no arrangement with any person to
participate in the distribution of such New Notes, that such holder is not an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act and that such holder is not engaged in, and does not intend to engage in, a
distribution of the New Notes. Any holder of Old Notes using the Exchange Offer
to participate in a distribution of the New Notes (i) cannot rely on the
position of the staff of the Securities and Exchange Commission (the
"Commission") enunciated in its interpretive letter with respect to Exxon
Capital Holdings Corporation (available May 13, 1988) or similar letters and
(ii) must comply with the registration and prospectus requirements of the
Securities Act in connection with a secondary resale transaction.
If the undersigned is not a broker-dealer, the undersigned represents that
it is not engaged in, and does not intend to engage in, a distribution of New
Notes. If the undersigned is a broker-dealer that will receive New Notes for its
own account in exchange for Old Notes that were acquired as a result of market-
making activities or other trading activities, it acknowledges that it will
deliver a prospectus in connection with any resale of such New Notes, however,
by so acknowledging and by delivering a prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act. A broker-dealer may not participate in the Exchange Offer with respect to
Old Notes acquired other than as a result of market-making activities or other
trading activities.
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned and every obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned. Tendered Old Notes may be withdrawn at any time
prior to the Expiration Date in accordance with the terms of this Letter of
Transmittal. See Instruction 2.
Certificates for all New Notes delivered in exchange for tendered Old Notes
and any Old Notes delivered herewith but not exchanged, and registered in the
name of the undersigned, shall be delivered to the undersigned at the address
shown below the signature of the undersigned.
6
<PAGE>
TENDER HOLDER(S) SIGN HERE
(Complete accompanying substitute Form W-9)
________________________________________________________________________________
________________________________________________________________________________
Signature(s) of Holder(s)
Dated_____________________ Area Code and Telephone Number_______________________
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON
CERTIFICATE(S) FOR OLD NOTES. IF SIGNATURE IS BY A TRUSTEE, EXECUTOR,
ADMINISTRATOR, GUARDIAN, ATTORNEY-IN-FACT, OFFICER OF A CORPORATION OR OTHER
PERSON ACTING IN A FIDUCIARY OR REPRESENTATIVE CAPACITY, PLEASE SET FORTH THE
FULL TITLE OF SUCH PERSON.) SEE INSTRUCTION 3.
Name(s)
________________________________________________________________________________
(Please Print)
Capacity (full title)
________________________________________________________________________________
Address
________________________________________________________________________________
(Including Zip Code)
Area Code and Telephone No.
________________________________________________________________________________
Taxpayer Identification No
________________________________________________________________________________
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED--SEE INSTRUCTION 3)
Authorized Signature
________________________________________________________________________________
Name
________________________________________________________________________________
Address
________________________________________________________________________________
Name of Firm
________________________________________________________________________________
Area Code and Telephone No.
________________________________________________________________________________
Dated
________________________________________________________________________________
7
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CERTIFICATES.
A holder of Old Notes may tender the same by (i) properly completing and signing
this Letter of Transmittal or a facsimile hereof (all references in the
Prospectus to the Letter of Transmittal shall be deemed to include a facsimile
thereof) and delivering the same, together with the certificate or certificates
representing the Old Notes being tendered and any required signature guarantees
and any other document required by this Letter of Transmittal, to the Exchange
Agent at its address set forth above on or prior to the Expiration Date (or
complying with the procedure for book-entry transfer described below) or (ii)
complying with the guaranteed delivery procedures described below.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE OLD NOTES AND ANY
OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE HOLDER, AND EXCEPT
AS OTHERWISE PROVIDED BELOW, THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY
RECEIVED OR CONFIRMED BY THE EXCHANGE AGENT. IF SUCH DELIVERY IS BY MAIL, IT IS
SUGGESTED THAT REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED,
BE USED. IN ALL CASES SUFFICIENT TIME SHOULD BE ALLOWED TO PERMIT TIMELY
DELIVERY. NO OLD NOTES OR LETTERS OF TRANSMITTAL SHOULD BE SENT TO THE COMPANY.
If tendered Old Notes are registered in the name of the signer of the
Letter of Transmittal and the New Notes to be issued in exchange therefor are to
be issued (and any untendered Old Notes are to be reissued) in the name of the
registered holder (which term, for the purposes described herein, shall include
any participant in The Depository Trust Company (also referred to as a "book-
entry transfer facility") whose name appears on a security listing as the owner
of Old Notes), the signature of such signer need not be guaranteed. In any other
case, the tendered Old Notes must be endorsed or accompanied by written
instruments of transfer in form satisfactory to the Company and duly executed by
the registered holder, and the signature on the endorsement or instrument of
transfer must be guaranteed by a bank, broker, dealer, credit union, savings
association, clearing agency or other institution (each an "Eligible
Institution") that is a member of a recognized signature guarantee medallion
program within the meaning of Rule 17Ad-15 under the Securities Exchange Act of
1934, as amended. If the New Notes and/or Old Notes not exchanged are to be
delivered to an address other than that of the registered holder appearing on
the note register for the Old Notes, the signature on the Letter of Transmittal
must be guaranteed by an Eligible Institution.
The Exchange Agent will make a request within two business days after the
date of receipt of this Prospectus to establish accounts with respect to the Old
Notes at the book-entry transfer facility for the purpose of facilitating the
Exchange Offer, and subject to the establishment thereof, any financial
institution that is a participant in the book-entry transfer facility's system
may make book-entry delivery of Old Notes by causing such book-entry transfer
facility to transfer such Old Notes into the Exchange Agent's account with
respect to the Old Notes in accordance with the book-entry transfer facility's
procedures for such transfer. Although delivery of Old Notes may be effected
through book-entry transfer into the Exchange Agent's account at the book-entry
transfer facility, an appropriate Letter of Transmittal with any required
signature guarantee and all other required documents must in each case be
transmitted to and received or confirmed by the Exchange Agent on or prior to
the Expiration Date, or, if the guaranteed delivery procedures described below
are complied with, within the time period provided under such procedures.
If a holder desires to accept the Exchange Offer and time will not permit a
Letter of Transmittal or Old Notes to reach the Exchange Agent before the
Expiration Date or the procedure for book-entry transfer cannot be completed on
a timely basis, a tender may be effected if the Exchange Agent has received on
or prior to the Expiration Date, a letter or facsimile transmission (receipt
confirmed by telephone and an original delivered by guaranteed overnight
courier) from an Eligible Institution setting forth the name and address of the
tendering holder, the names in which the Old Notes are registered and, if
possible, the certificate numbers of the Old Notes to be tendered, and stating
that the tender is being made thereby and guaranteeing that within three
business days after the Expiration Date, the Old Notes in proper form for
transfer (or a confirmation of book-entry transfer of such Old Notes into the
Exchange Agent's account at the book-entry transfer facility), will be delivered
by such Eligible Institution together with a properly completed and duly
executed Letter of Transmittal (and any other required documents). Unless Old
Notes being tendered by the above-described method are deposited with the
Exchange Agent within the time period set forth above (accompanied or preceded
by a properly completed Letter of Transmittal and any other required documents),
the Company may, at its option, reject the tender. Copies of the notice of
guaranteed delivery ("Notice of
8
<PAGE>
Guaranteed Delivery") which may be used by Eligible Institutions for the
purposes described in this paragraph are available from the Exchange Agent.
A tender will be deemed to have been received as of the date when (i) the
tendering holder's properly completed and duly signed Letter of Transmittal
accompanied by the Old Notes (or a confirmation of book-entry transfer of such
Old Notes into the Exchange Agent's account at the book-entry transfer facility)
is received by the Exchange Agent, or (ii) a Notice of Guaranteed Delivery or
letter or facsimile transmission to similar effect (as provided above) from an
Eligible Institution is received by the Exchange Agent. Issuances of New Notes
in exchange for Old Notes tendered pursuant to a Notice of Guaranteed Delivery
or letter or facsimile transmission to similar effect (as provided above) by an
Eligible Institution will be made only against deposit of the Letter of
Transmittal (and any other required documents) and the tendered Old Notes.
If the Letter of Transmittal is signed by a person or persons other than
the registered holder or holders of Old Notes, such Old Notes must be endorsed
or accompanied by appropriate powers of attorney, in either case signed exactly
as the name or names of the registered holder or holders appear on the Old
Notes.
No alternative, conditional, irregular or contingent tenders will be
accepted. All tendering holders, by execution of this Letter of Transmittal (or
facsimile thereof), shall waive any right to receive notice of the acceptance of
the Old Notes for exchange.
2. PARTIAL TENDERS; WITHDRAWALS.
If less than the entire principal amount of Old Notes evidenced by a
submitted certificate is tendered, the tendering holder should fill in the
principal amount tendered in the box entitled "Principal Amount Tendered." A
newly issued certificate for the principal amount of Old Notes submitted but not
tendered will be sent to such holder as soon as practicable after the Expiration
Date. All Old Notes delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise clearly indicated.
For a withdrawal to be effective, a written notice of withdrawal sent by
facsimile transmission (receipt confirmed by telephone) or letter must be
received by the Exchange Agent at the address set forth herein prior to the
Expiration Date. Any such notice of withdrawal must (i) specify the name of the
person having tendered the Old Notes to be withdrawn (the "Depositor"), (ii)
identify the Old Notes to be withdrawn (including the certificate number or
numbers and principal amount of such Old Notes), (iii) specify the principal
amount of Old Notes to be withdrawn, (iv) include a statement that such holder
is withdrawing his election to have such Old Notes exchanged, (v) be signed by
the holder in the same manner as the original signature on the Letter of
Transmittal by which such Old Notes were tendered or as otherwise described
above (including any required signature guarantees) or be accompanied by
documents of transfer sufficient to have the Trustee under the Indenture
register the transfer of such Old Notes into the name of the person withdrawing
the tender and (vi) specify the name in which any such Old Notes are to be
registered, if different from that of the Depositor. The Exchange Agent will
return the properly withdrawn Old Notes promptly following receipt of notice of
withdrawal. If Old Notes have been tendered pursuant to the procedure for book-
entry transfer, any notice of withdrawal must specify the name and number of the
account at the book-entry transfer facility to be credited with the withdrawn
Old Notes or otherwise comply with the book-entry transfer facility procedure.
All questions as to the validity of notices of withdrawals, including time of
receipt, will be determined by the Company and such determination will be final
and binding on all parties.
Any Old Notes so withdrawn will be deemed not to have been validly tendered
for exchange for purposes of the Exchange Offer. Any Old Notes which have been
tendered for exchange but which are not exchanged for any reason will be
returned to the holder thereof without cost to such holder (or, in the case of
Old Notes tendered by book-entry transfer into the Exchange Agent's account at
the book-entry transfer facility pursuant to the book-entry transfer procedures
described above, such Old Notes will be credited to an account with such book-
entry transfer facility specified by the holder) as soon as practicable after
withdrawal, rejection of tender or termination of the Exchange Offer. Properly
withdrawn Old Notes may be retendered by following one of the procedures
described under the caption "Procedures for Tendering Old Notes" in the
Prospectus at any time on or prior to the Expiration Date.
9
<PAGE>
3. SIGNATURE ON THIS LETTER OF TRANSMITTAL; WRITTEN INSTRUMENTS AND
ENDORSEMENTS; GUARANTEE OF SIGNATURES.
If this Letter of Transmittal is signed by the registered holder(s) of the
Old Notes tendered hereby, the signature must correspond with the name(s) as
written on the face of the certificates without alteration, enlargement or any
change whatsoever.
If any of the Old Notes tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If a number of Old Notes registered in different names are tendered, it
will be necessary to complete, sign and submit as many separate copies of this
Letter of Transmittal as there are different registrations of Old Notes.
When this Letter of Transmittal is signed by the registered holder or
holders (which term, for the purposes described herein, shall include the book-
entry transfer facility whose name appears on a security listing as the owner of
the Old Notes) of Old Notes listed and tendered hereby, no endorsements of
certificates or separate written instruments of transfer or exchange are
required.
If this Letter of Transmittal is signed by a person other than the
registered holder or holder of the Old Notes listed, such Old Notes must be
endorsed or accompanied by separate written instruments of transfer or exchange
in form satisfactory to the Company and duly executed by the registered holder,
in either case signed exactly as the name or names of the registered holder or
holders appear(s) on the Old Notes.
If this Letter of Transmittal, any certificates or separate written
instruments of transfer or exchange are signed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, such persons should so
indicate when signing, and, unless waived by the Company, proper evidence
satisfactory to the Company of their authority so to act must be submitted.
Endorsements on certificates or signatures on separate written instruments
of transfer or exchange required by this Instruction 3 must be guaranteed by an
Eligible Institution.
Signatures on this Letter of Transmittal need not be guaranteed by an
Eligible Institution, provided the Old Notes are tendered: (i) by a registered
holder of such Old Notes, for the holder of such Old Notes; or (ii) for the
account of an Eligible Institution.
4. TRANSFER TAXES.
The Company shall pay all transfer taxes, if any, applicable to the
transfer and exchange of Old Notes to it or its order pursuant to the Exchange
Offer. If, however, certificates representing New Notes or Old Notes for
principal amounts not tendered or accepted for exchange are to be delivered to,
or are to be issued in the name of, any person other than the registered holder
of the Old Notes tendered, or if tendered Old Notes are registered in the name
of any person other than the person signing the Letter of Transmittal, or if a
transfer tax is imposed for any reason other than the exchange of Old Notes
pursuant to the Exchange Offer, then the amount of any such transfer taxes
(whether imposed on the registered holder or any other persons) will be payable
by the tendering holder. If satisfactory evidence of payment of such taxes or
exception therefrom is not submitted herewith the amount of such transfer taxes
will be billed directly to such tendering holder.
Except as provided in this Instruction 4, it will not be necessary for
transfer tax stamps to be affixed to the Old Notes listed in this Letter of
Transmittal.
5. WAIVER OF CONDITIONS.
The Company reserves the right to waive in its reasonable judgment, in
whole or in part, any of the conditions to the Exchange Offer set forth in the
Prospectus.
6. MUTILATED, LOST, STOLEN OR DESTROYED OLD NOTES.
Any holder whose Old Notes have been mutilated, lost, stolen or destroyed,
should contact the Exchange Agent at the address indicated above for further
instructions.
10
<PAGE>
7. SUBSTITUTE FORM W-9.
Each holder of Old Notes whose Old Notes are accepted for exchange (or
other payee) is required to provide a correct taxpayer identification number
("TIN"), generally the holder's Social Security or federal employer
identification number, and with certain other information, on Substitute Form W-
9, which is provided under "Important Tax Information" below, and to certify
that the holder (or other payee) is not subject to backup withholding. Failure
to provide the information on the Substitute Form W-9 may subject the holder (or
other payee) to a $50 penalty imposed by the Internal Revenue Service and 31%
federal income tax backup withholding on payments made in connection with the
New Notes. The box in Part 3 of the Substitute Form W-9 may be checked if the
holder (or other payee) has not been issued a TIN and has applied for a TIN or
intends to apply for a TIN in the near future. If the box in Part 3 is checked
and a TIN is not provided by the time any payment is made in connection with the
New Notes, 31% of all such payments will be withheld until a TIN is provided.
8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES.
Questions relating to the procedure for tendering, as well as requests for
additional copies of the Prospectus and this Letter of Transmittal, may be
directed to the Exchange Agent at the address and telephone number set forth
above. In addition, all questions relating to the Exchange Offer, as well as
requests for assistance or additional copies of the Prospectus and this Letter
of Transmittal, may be directed to Federal-Mogul Corporation, 26555 Northwestern
Highway, Southfield, Michigan 48034, Attention: David M. Sherbin, Associate
General Counsel and Secretary, telephone (248) 354-7700.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE HEREOF (TOGETHER WITH
CERTIFICATES FOR OLD NOTES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER
REQUIRED DOCUMENTS) OR A NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE
EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE.
IMPORTANT TAX INFORMATION
Under U.S. Federal income tax law, a holder of Old Notes whose Old Notes
are accepted for exchange may be subject to backup withholding unless the holder
provides The Bank of New York (as payor) (the "Paying Agent"), through the
Exchange Agent, with either (i) such holder's correct taxpayer identification
number ("TIN") on Substitute Form W-9 attached hereto, certifying that the TIN
provided on Substitute Form W-9 is correct (or that such holder of Old Notes is
awaiting a TIN) and that (A) the holder of Old Notes has not been notified by
the Internal Revenue Service that he or she is subject to backup withholding as
a result of a failure to report all interest or dividends or (B) the Internal
Revenue Service has notified the holder of Old Notes that he or she is no longer
subject to backup withholding; or (ii) an adequate basis for exemption from
backup withholding. If such holder of Old Notes is an individual, the TIN is
such holder's social security number. If the Paying Agent is not provided with
the correct taxpayer identification number, the holder of Old Notes may be
subject to certain penalties imposed by the Internal Revenue Service.
Certain holders of Old Notes (including, among others, all corporations and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. Exempt holders of Old Notes should indicate their exempt
status on Substitute Form W-9. In order for a foreign individual to qualify as
an exempt recipient, the holder must submit a Form W-8, signed under penalties
of perjury, attesting to that individual's exempt status. A Form W-8 can be
obtained from the Paying Agent. See the enclosed "Guidelines for Certification
of Taxpayer Identification Number on Substitute Form W-9" for more instructions.
If backup withholding applies, the Paying Agent is required to withhold 31%
of any such payments made to the holder of Old Notes or other payee. Backup
withholding is not an additional tax. Rather, the tax liability of persons
subject to backup withholding will be reduced by the amount of tax withheld. If
withholding results in an overpayment of taxes, a refund may be obtained from
the Internal Revenue Service.
The box in Part 3 of the Substitute Form W-9 may be checked if the
surrendering holder of Old Notes has not been issued a TIN and has applied for a
TIN or intends to apply for a TIN in the near future. If the box in Part 3 is
checked, the holder of Old Notes or other payee must also complete the
Certificate of Awaiting Taxpayer Identification Number below in order to avoid
backup withholding . Notwithstanding that the box in Part 3 is checked and the
Certificate of Awaiting Taxpayer Identification Number is completed, the
11
<PAGE>
Paying Agent will withhold 31% of all payments made prior to the time a properly
certified TIN is provided to the Paying Agent.
The holder of Old Notes is required to give the Paying Agent the TIN (e.g.,
social security number or employer identification number) of the record owner of
the Old Notes. If the Old Notes are in more than one name or are not in the name
of the actual owner, consult the enclosed "Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9" for additional guidance
on which number to report.
PAYOR'S NAME: THE BANK OF NEW YORK, AS PAYING AGENT
<TABLE>
<CAPTION>
<S> <C> <C>
SUBSTITUTE PART I--PLEASE PROVIDE YOUR TIN Social Security or
IN THE BOX AT RIGHT AND CERTIFY Employer Identification
BY SIGNING AND DATING BELOW. Number(s)
FORM W-9 DEPARTMENT PART 2--CERTIFICATION--Under
OF THE TREASURY penalties of perjury, I certify that: (1) The
INTERNAL REVENUE number shown on this form is my correct
SERVICE taxpayer identification number (or I am
waiting for a number to be issued for me),
and (2) I am not subject to backup
withholding because: (a) I am exempt from
backup withholding, or (b) I have not been
notified by the Internal Revenue Service
(IRS) that I am subject to backup
withholdings
PAYOR'S REQUEST FOR CERTIFICATION INSTRUCTIONS--You
TAXPAYER must cross out item (2) above if you
IDENTIFICATION have been notified by the IRS that you are
NUMBER ("TIN") currently subject to backup withholding
because of under reporting interest or
dividends on your tax return.
</TABLE>
PART 3--Awaiting TIN [_]
Signature
Date
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN A $50 PENALTY
IMPOSED BY THE INTERNAL REVENUE SERVICE AND BACKUP WITHHOLDING OF 31% OF
ANY CASH PAYMENTS MADE TO YOU. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR
CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR
ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART
3 OF THE SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (2)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number by the time of payment, 31%
of all reportable cash payments made to me thereafter will be withheld until I
provide a taxpayer identification number.
- -------------------------------------- -----------------------------------
Signature Date
12
<PAGE>
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF ALL OUTSTANDING
7 3/8% NOTES DUE 2006
IN EXCHANGE FOR NEW 7 3/8% NOTES DUE 2006
AND ALL OUTSTANDING 7 1/2% NOTES DUE 2009
IN EXCHANGE FOR NEW 7 1/2% NOTES DUE 2009
OF
FEDERAL-MOGUL CORPORATION
Registered holders of outstanding 7 3/8% Notes due 2006 (the "Old 7 3/8%
Notes") who wish to tender their Old 7 3/8% Notes in exchange for a like
principal amount of New 7 3/8% Notes due 2006 (the "New 7 3/8% Notes") and
registered holders of outstanding 7 1/2% Notes due 2009 (the "Old 7 1/2% Notes
and together with the Old 7 3/8% Notes, the "Old Notes") who wish to tender
their Old 7 1/2% Notes in exchange for a like principal amount of New 7 1/2%
Notes due 2009 (the "New 7 1/2% Notes" and together with the New 7 1/2% Notes,
the "New Notes") and whose Old Notes are not immediately available or who cannot
deliver their Old Notes and Letter of Transmittal (and any other documents
required by the Letter of Transmittal) to The Bank of New York (the "Exchange
Agent") prior to the Expiration Date, may use this Notice of Guaranteed Delivery
or one substantially equivalent hereto. This Notice of Guaranteed Delivery may
be delivered by hand or sent by facsimile transmission (receipt confirmed by
telephone and an original delivered by guaranteed overnight courier) or mail to
the Exchange Agent. See "Exchange Offer; Registration Rights--Procedure for
Tendering Old Notes" in the Prospectus.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
THE BANK OF NEW YORK
<TABLE>
<CAPTION>
By Registered or Certified Mail: Facsimile Transmission Number: By Hand/Overnight Delivery
<S> <C> <C>
The Bank of New York Attn: Martha James The Bank of New York
101 Barclay, Floor 7E Reorganization Section 101 Barclay Street
New York, New York 10286 (212) 815-4699 Corporate Trust Services Window
Attn: Martha James Ground Level
Reorganization Section New York, New York 10286
Attn: Martha James
Reorganization Section
</TABLE>
(For Eligible Institutions Only)
Confirm by Telephone:
(212) 815-6335
For Information Call:
(212) 815-6335
BY FACSIMILE:
(212) 815-4699
(For Eligible Institutions Only)
BY TELEPHONE:
(212) 815-6335
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION VIA A FACSIMILE TRANSMISSION TO A NUMBER OTHER
THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an Eligible Institution (as defined in the Prospectus), such
signature guarantee must appear in the applicable space provided on the Letter
of Transmittal for Guarantee of Signatures.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders the principal amount of Old Notes indicated
below, upon the terms and subject to the conditions contained in the Prospectus
dated [ ], 1999 of Federal-Mogul Corporation (the "Prospectus"), receipt of
which is hereby acknowledged.
DESCRIPTION OF SECURITIES TENDERED
<TABLE>
<CAPTION>
AGGREGATE AGGREGATE
NAME(S) AND PRINCIPAL PRINCIPAL PRINCIPAL PRINCIPAL
ADDRESS(ES) OF AMOUNT OF AMOUNT AMOUNT OF AMOUNT
REGISTERED AGGREGATE PRINCIPAL OLD 7 3/8% REPRESENTED OLD 7 1/2% OF REPRESENTED
HOLDER(S) CERTIFICATE AMOUNT REPRESENTED NOTES BY OLD 7 3/8% NOTES BY OLD 7 1/2%
(PLEASE FILL IN) NUMBER(S)* BY OLD NOTES* TENDERED** NOTES* TENDERED** NOTES*
<S> <C> <C> <C> <C> <C> <C>
- ----------------- ----------- ------------------- ---------- ------------- ------------- -------------
- ----------------- ----------- ------------------- ---------- ------------- ------------- -------------
- ----------------- ----------- ------------------- ---------- ------------- ------------- -------------
- ----------------- ----------- ------------------- ---------- ------------- ------------- -------------
- ----------------- ----------- ------------------- ---------- ------------- ------------- -------------
</TABLE>
THE FOLLOWING GUARANTEE MUST BE COMPLETED
GUARANTEE OF DELIVERY
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a member of a recognized signature guarantee medallion
program within the meaning of Rule 17Ad-15 under the Securities Exchange Act of
1934, as amended, hereby guarantees to deliver to the Exchange Agent at one of
its addresses set forth above, the certificates representing the Old Notes (or a
confirmation of book-entry transfer of such Old Notes into the Exchange Agent's
account at the book-entry transfer facility), together with a properly completed
and duly executed Letter of Transmittal (or facsimile thereof), with any
required signature guarantees, and any other documents required by the Letter of
Transmittal within three business days after the Expiration Date (as defined in
the Prospectus and the Letter of Transmittal).
Name of Firm:
---------------------------- ------------------------------------
(Authorized Signature)
Address: Title:
---------------------------------- ------------------------------
Name:
- ------------------------------------------ -------------------------------
(Zip Code) (Please type or print)
Area Code and Telephone No.: Date:
-------------- -------------------------------
NOTE: DO NOT SEND OLD NOTES WITH THIS NOTICE OF GUARANTEED DELIVERY. OLD
NOTES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
2
<PAGE>
EXHIBIT 99.3
Date: [ ], 1999
EXCHANGE AGENT AGREEMENT
The Bank of New York
Corporate Trust Trustee Administration
101 Barclay Street--21st Floor
New York, New York 10286
Ladies and Gentlemen:
Federal-Mogul Corporation (the "Company") proposes to make an offer (the
"Exchange Offer") to exchange an aggregate principal amount of up to
$400,000,000 7 3/8% Notes due 2006 (the "New 7 3/8% Notes") for a like principal
amount of the Company's issued and outstanding 7 3/8% Notes due 2006 (the "Old 7
3/8% Notes") and $600,000,000 7 1/2% Notes due 2009 (the "New 7 1/2% Notes" and
together with the New 7 3/8% Notes, the "New Notes") for a like principal amount
of the Company's issued and outstanding 7 1/2% Notes due 2009 (the "Old 7 1/2%
Notes" and together with the Old 7 3/8% Notes, the "Old Notes"). The terms and
conditions of the Exchange Offer as currently contemplated are set forth in a
prospectus dated [ ], 1999 (the "Prospectus") proposed to be distributed to all
record holders of the Old Notes. Capitalized terms used but not defined herein
shall have the same meaning given to them in the Prospectus.
The Company hereby appoints The Bank of New York to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or about
[ ], 1999. The Letter of Transmittal accompanying the Prospectus (or in the
case of book-entry securities, the ATOP system) is to be used by the holders of
the Old Notes to accept the Exchange Offer and contains instructions with
respect to the delivery of certificates for Old Notes tendered in connection
therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on [ ],
1999 or on such later date or time to which the Company may extend the Exchange
Offer (the "Expiration Date"). Subject to the terms and conditions set forth in
the Prospectus, the Company expressly reserves the right to extend the Exchange
Offer from time to time and may extend the Exchange Offer by giving oral
(confirmed in writing) or written notice to you before 9:00 A.M., New York City
time, on the business day following the previously scheduled Expiration Date.
You shall follow and act upon any further instructions in connection with the
Exchange Offer, any of which may be given to you by the Company or such other
persons as it may authorize, which are consistent with this Agreement.
The Company expressly reserves the right to amend or terminate the Exchange
Offer, and not to accept for exchange any Old Notes not theretofore accepted for
exchange, upon the occurrence of any of the conditions of the Exchange Offer
specified in the Prospectus under the caption "The Exchange Offer; Registration
Rights--Conditions to the Exchange Offer."
The Company will give oral (confirmed in writing) or written notice of any
amendment, termination or nonacceptance to you as promptly as practicable. In
carrying out your duties as Exchange Agent, you are to act in accordance with
the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth in the section of the Prospectus captioned "The Exchange Offer;
Registration Rights" or as specifically set forth herein; provided, however,
that in no way will your general duty to act in good faith be discharged by the
foregoing.
2. You will establish an account with respect to the Old Notes at The
Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of
the Exchange Offer within two (2) business days after the date of the
Prospectus, and any financial institution that is a participant in the Book-
Entry
<PAGE>
Transfer Facility's systems may make book-entry delivery of Old Notes by causing
the Book-Entry Transfer Facility to transfer such Old Notes into your account in
accordance with the Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and certificates
for Old Notes (or confirmations of book-entry transfer into your account at the
Book-Entry Transfer Facility) and any other documents delivered or mailed to you
by or for holders of the Old Notes to ascertain whether: (i) Letters of
Transmittal are duly executed and properly completed in accordance with
instructions set forth therein, (ii) the Old Notes have otherwise been properly
tendered or whether any stop transfer orders are in effect with respect to the
Old Notes, and (iii) any other documents submitted to you are duly executed and
properly completed. In each case where the Letter of Transmittal or any other
document has been improperly completed or executed or any of the certificates
for Old Notes are not in proper form for transfer (as required by the
instructions stated in the Letter of Transmittal) or some other irregularity in
connection with the acceptance of the Exchange Offer exists, you will endeavor
to inform the presenters of the need for fulfillment of all requirements and to
take any other action as may be necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of the President or any Executive Vice President of
the Company (such approval, if given orally, to be confirmed in writing) or any
other party designated by such an officer in writing, you are authorized to
waive any irregularities in connection with any tender of Old Notes pursuant to
the Exchange Offer.
5. Tenders of Old Notes may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "Exchange Offer;
Registration Rights--Procedures for Tendering," and Old Notes shall be
considered properly tendered to you only when tendered in accordance with the
procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old Notes which the
President or any Executive Vice President of the Company shall approve as having
been properly tendered shall be considered to be properly tendered (such
approval, if given orally, shall be confirmed in writing).
6. You shall advise the Company with respect to any Old Notes received
subsequent to the Expiration Date and accept its instructions with respect to
disposition of such Old Notes.
7. You shall accept tenders:
(a) in cases where the Old Notes are registered in two (2) or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only
when proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Old Notes,
provided that customary transfer requirements, including transfer taxes, if
applicable, are fulfilled.
You shall accept partial tenders of Old Notes where so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Old Notes to
the transfer agent for split-up and return any untendered Old Notes to the
holder (or such other person as may be designated in the Letter of Transmittal)
as set forth in paragraph 10 hereof.
8. (a) Except as otherwise provided herein, delivery shall be deemed
made at the time the Old Notes (or a Book Entry Confirmation relating to such
Old Notes), the Letter(s) of Transmittal relating thereto and all other required
documents have been received by you.
2
<PAGE>
(b) A delivery by Notice of Guaranteed Delivery shall be deemed made
on the date such Notice of Guaranteed Delivery is received by you,
provided that all other conditions, including timely compliance with the
procedures for guaranteed delivery set forth in the Prospectus, are met.
(c) Defective deliveries shall be deemed validly made at the time the
irregularities have been cured to the satisfaction of, or waived by, the
Company.
9. You shall notify the Company as promptly as practicable after the
Expiration Date of the aggregate principal amount of Old Notes received by you
along with the specific information requested with respect to each category of
Old Notes pursuant to paragraph 21 hereof.
10. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice if given orally, to be confirmed
in writing) of its acceptance, within two days of receipt of your notice
pursuant to paragraph 9 hereof, of all Old Notes properly tendered and you, on
behalf of the Company, will exchange such Old Notes for New Notes and cause
such Old Notes to be canceled. Delivery of New Notes will be made on behalf of
the Company by you at the rate of $1,000 principal amount of New Notes for each
$1,000 principal amount of the corresponding series of Old Notes tendered
promptly after notice (such notice if given orally, to be confirmed in writing)
of acceptance of said Old Notes by the Company, as set forth above; provided,
however, that in all cases, Old Notes tendered pursuant to the Exchange Offer
will be exchanged only after timely receipt by you of certificates for such Old
Notes (or confirmation of book-entry transfer into your account at the Book-
Entry Transfer Facility), a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) with any required signature guarantees and
any other required documents. You shall issue New Notes only in denominations
of $1,000 or any integral multiple thereof. Delivery of Old Notes will be made
on behalf of the Company by you for the principal amount of the Old Notes not
tendered, if tendered in part only, or not exchanged promptly after notice of
acceptance of Old Notes by the Company, as set forth above.
11. You are authorized to cause to be registered in the name of, and
deliver to the transferee in accordance with such instructions, New Notes if
Old Notes are surrendered to you for exchange with instructions to deliver New
Notes in a name other than that of the registered holder of the Old Notes;
provided, however, that it shall be a condition of such exchange that the Old
Notes so surrendered shall be properly endorsed or accompanied by appropriate
powers of attorney or other written instruments of transfer or exchange
satisfactory to the Company, with the signatures guaranteed by an Eligible
Institution, and that the person requesting such exchange shall pay any transfer
or other taxes required by reason of the issuance of such New Notes in the name
of a party other than the registered holder of the Old Notes surrendered, or
establish to you satisfaction that such tax has been paid or is not applicable.
12. If a holder of Old Notes shall advise you that Old Notes owned by the
holder have been lost or destroyed and not replaced, you are hereby authorized,
in the absence of notice to you that such Old Notes have been acquired by a bona
fide purchaser, to deliver to such holder the New Notes to which that holder
would be entitled, but only if you shall first have received (i) an affidavit of
loss of an Old Note which is in form and substance satisfactory to the Company
and the trustee under the indenture relating to the Old Note, in their sole
discretion, and (ii) such security or indemnity as may be required by the
Company or you to save and hold harmless to you, the Company, the trustee under
the indenture relating to the Old Notes and any other persons with respect to
the Old Notes alleged to have been lost or destroyed against liability from such
delivery in the absence of such Old Notes.
13. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Notes tendered pursuant to the Exchange Offer may be
withdrawn at any time prior to the Expiration Date.
14. The Company shall not be required to exchange any Old Notes tendered
if any of the conditions set forth in the Exchange Offer are not met. Notice of
any decision by the Company not to exchange any Old Notes tendered shall be
given (if orally, to be confirmed in writing) by the Company to you.
3
<PAGE>
15. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Notes tendered because of an invalid tender, the
occurrence of certain other events set forth in the Prospectus under the caption
"Exchange Offer; Registration Rights--Conditions to the Exchange Offer" or
otherwise, you shall, as soon as practicable after the expiration or termination
of the Exchange Offer, return those certificates for unaccepted Old Notes (or
effect appropriate book-entry transfer), together with any related required
documents and the Letters of Transmittal relating thereto that are in your
possession, with a letter or notice, in form satisfactory to the Company,
explaining why the Old Notes are being returned to the persons who deposited
them.
16. All certificates for reissued Old Notes, unaccepted Old Notes or for
New Notes shall be forwarded by first-class mail.
17. You are authorized to cooperate with and furnish information to Sidley
& Austin or any of its representatives, or any other organization (and its
representatives) designated in writing to you from time to time by the Company,
in any manner reasonably requested by it in connection with the Exchange Offer
and the surrender of Old Notes thereunder.
18. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
19. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those specifically
set forth herein or as may be subsequently agreed to in writing by you and
the Company;
(b) will be regarded as making no representation and having no
responsibilities as to the validity, sufficiency, value or genuineness of
any of the certificates or the Old Notes represented thereby deposited with
you pursuant to the Exchange Offer, and will not be required to and will
make no representation as to the validity, value or genuineness of the
Exchange Offer, except where failure to recognize such invalidity or lack
of genuineness would constitute gross negligence;
(c) shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability unless
you shall have been furnished with reasonable indemnity;
(d) may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter or other
document or security delivered to you and reasonably believed by you in
good faith to be genuine and to have been signed by the proper party or
parties, and you need not pass on the legal sufficiency of any signature or
verify any signature guarantee, although you are to ascertain whether each
signature or signature guarantee required to appear on the Letters of
Transmittal and any other required documents does so appear;
(e) shall not accept any defective, alternative, conditional or
contingent delivery, except as provided in the Prospectus, instructions to
the Letter of Transmittal or this Agreement;
(f) shall comply with the reasonable written instructions of the
Company if any dispute should arise between us or any other party with
respect hereto, or if you, in good faith, are in doubt as to what action
should be taken hereunder;
(g) may rely on and shall be protected in acting upon written or oral
instructions, with respect to any matter relating to your actions as
Exchange Agent specifically covered by this Agreement, or supplementing or
qualifying any such actions, from the President or any Executive Vice
President of the Company;
4
<PAGE>
(h) may consult with your counsel with respect to any questions
relating to your duties and responsibilities and the advice or opinion of
such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by you
hereunder in good faith and in accordance with the advice or opinion of
such counsel; and
(i) shall not advise any person tendering Old Notes pursuant to the
Exchange Offer as to the wisdom of making such tender or as to the market
value or decline or appreciation in market value of any Old Notes or take
any other action that may be deemed to be a solicitation of the exchange of
the Old Notes.
20. You shall take such action as may from time to time be requested by
the Company or its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Prospectus, Letter of Transmittal and the
Notice of Guaranteed Delivery (as defined in the Prospectus) or such other forms
as may be approved from time to time by the Company, to all persons requesting
such documents and to accept and comply with telephone requests for information
relating to the Exchange Offer, provided that such information shall relate only
to the procedures for accepting (or withdrawing from) the Exchange Offer. The
Company will furnish you with copies of such documents at your request. All
other requests for information relating to the Exchange Offer shall be directed
to the Company, Attention: David M. Sherbin, Esq., Associate General Counsel and
Secretary.
21. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to David M. Sherbin, Esq., Associate General
Counsel and Secretary of the Company, and such other person or persons as the
Company may request, daily (and more frequently during the week immediately
preceding the Expiration Date and if otherwise requested) up to and including
the Expiration Date, as to the number of Old Notes which have been tendered
pursuant to the Exchange Offer and the items received by you pursuant to this
Agreement, separately reporting and giving cumulative totals as to items
properly received, items improperly received and items received but which have
not yet been verified to be in proper form. In addition, you will also inform,
and cooperate in making available to, the Company or any such other person or
persons upon oral request made from time to time prior to the Expiration Date of
such other information as it, he or she reasonably requests. Such cooperation
shall include, without limitation, the granting by you to the Company and such
person as the Company may request access to those persons on your staff who are
responsible for receiving tenders, in order to ensure that at all times
including immediately prior to the Expiration Date the Company shall have
received information in sufficient detail to enable it to decide whether to
extend the Exchange Offer. You shall prepare a final list of all persons whose
tenders were accepted, the aggregate principal amount of Old Notes tendered, the
aggregate principal amount of Old Notes accepted and deliver said list to the
Company.
22. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and the time of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of securities, but in no event
less than three months. You shall dispose of unused Letters of Transmittal and
other surplus materials by returning them to the Company.
23. You hereby expressly waive any lien, encumbrance or right of set-off
whatsoever that you may have with respect to the Old Notes surrendered to you or
funds deposited with you for the payment of transfer taxes by reasons of
amounts, if any, borrowed by the Company, or any of its subsidiaries or
affiliates, pursuant to any loan or credit agreement with you or for
compensation owed to you hereunder.
24. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto. Your
compensation shall be paid and reimbursed to you by the Company promptly upon
submission of one or more invoices therefore.
25. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and
the Letter of Transmittal (as they may be amended from time to time), on the
5
<PAGE>
other hand, shall be resolved in favor of the latter two documents, except with
respect to the duties, liabilities and indemnification of you as Exchange Agent,
which shall be controlled by this Agreement.
26. The Company covenants and agrees to indemnify and hold you harmless in
your capacity as Exchange Agent hereunder against any claims, loss, liability,
cost or expense, including attorneys' fees and expenses, arising out of or in
connection with any act, omission, delay or refusal made by you in reliance upon
any signature, endorsement, assignment, certificate, order, request, notice,
instruction or other instrument or document reasonably believed by you to be
valid, genuine and sufficient and in accepting any tender or effecting any
transfer of Old Notes reasonably believed by you in good faith to be authorized,
and in delaying or refusing in good faith to accept any tenders or effect any
transfer of Old Notes; provided, however, that the Company shall not be liable
for indemnification or otherwise for any claims, loss, liability, cost or
expense to the extent arising out of your gross negligence, willful misconduct,
bad faith or breach of this Agreement. In no case shall the Company be liable
under this indemnity with respect to any claim against you unless the Company
shall be notified by you, by letter or by facsimile confirmed by letter, of the
written assertion of a claim against you or of any other action commenced
against you, promptly after you shall have received any such written assertion
or notice of commencement of action. The Company shall be entitled to
participate at its own expense in the defense of any such claim or other action,
and, if the Company so elects, the Company shall assume the defense of any suit
brought to enforce any such claim. In the event that the Company shall assume
the defense of any such suit, the Company shall not be liable for the fees and
expenses of any additional counsel thereafter retained by you so long as the
Company shall retain counsel reasonably satisfactory to you to defend such suit,
and so long as you have not determined, in your reasonable judgment, that a
conflict of interest exists between you and the Company. You shall not enter
into a settlement or other compromise with respect to any fully indemnified
loss, liability, cost or expense without the prior written consent of the
Company. If you shall obtain a repayment of any loss, liability, cost or expense
paid by the Company pursuant hereto, you shall promptly pay to the Company the
amount of such repayment, together with the amount of any interest received by
you on account of such repayment.
27. You shall comply with all requirements under the tax laws of the
United States, including those relating to missing Tax Identification Numbers
and obtaining and retaining substitute forms W-9, and shall file and mail any
appropriate reports which you are required to file pursuant to the Internal
Revenue Code of 1986, as amended, and the regulations promulgated thereunder
with the Internal Revenue Service. The Company understands that you are required
to deduct 31% on payments to holders who have not supplied their correct
Taxpayer Identification Number or required certification. You shall remit such
funds to the Internal Revenue Service in accordance with applicable regulations
and remit to each tendering holder of Old Notes any requisite federal income tax
information return or other similar document.
28. You shall deliver or cause to be delivered, in a timely manner, to
each governmental authority to which any transfer taxes are payable in respect
of the exchange of Old Notes, your check in the amount of all transfer taxes so
payable, and the Company shall reimburse you for the amount of any and all
transfer taxes payable in respect of the exchange of Old Notes and, where
appropriate, advise the holders of any such taxes for which they may be liable
and obtain payment from such holders prior to delivery of any New Notes;
provided, however, that you shall take all steps reasonably necessary to secure
any rebate or refund allowable to connection with such transfer taxes for the
account of the Company and that you shall reimburse the Company for amounts
refunded to you in respect of your payment of any such transfer taxes, at such
time as such refund is received by you.
6
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29. THIS AGREEMENT AND YOUR APPOINTMENT AS EXCHANGE AGENT HEREUNDER SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE,
AND WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES. This Agreement shall inure to
the benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
30. This Agreement may be executed in two (2) or more counterparts, each
of which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
31. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
32. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
33. Unless otherwise provided herein, all notices, requests and
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Company:
Federal-Mogul Corporation
26555 Northwestern Highway
Southfield, Michigan 48034
Facsimile: (248) 354-7999
Attention: General Counsel
If to the Exchange Agent:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Facsimile: (212) 815-5915
Attention: Corporate Trust Trustee
Administration
34. Unless terminated earlier by the parties hereto, this Agreement shall
terminate ninety (90) days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 24, 26 and 28 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Company any certificates for securities, funds or property then held by you
as Exchange Agent under this Agreement.
35. This Agreement shall be binding and effective as of the date hereof.
7
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Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
FEDERAL-MOGUL CORPORATION
By:
--------------------------------
Name:
Title:
Accepted as of the date first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:
----------------------------------
Name:
Title:
8
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SCHEDULE I
FEES
<TABLE>
<CAPTION>
<S> <C>
Basic Exchange Agent Fee............................................. ____
Extension of Exchange Offer Fee...................................... ____
</TABLE>
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