<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 1, 1995
REGISTRATION NO. 33-62415
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
FMC CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 94-0479804
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
200 EAST RANDOLPH DRIVE
CHICAGO, ILLINOIS 60601
(312) 861-6000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
ROBERT L. DAY
SECRETARY AND ASSISTANT GENERAL COUNSEL
FMC CORPORATION
200 EAST RANDOLPH DRIVE
CHICAGO, ILLINOIS 60601
(312) 861-6000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPY TO:
JOSEPH A. WALSH, JR. ROBERT E. CURLEY
WINSTON & STRAWN MAYER, BROWN & PLATT
35 WEST WACKER DRIVE 190 SOUTH LASALLE STREET
CHICAGO, ILLINOIS 60601 CHICAGO, ILLINOIS 60603
(312) 558-5600 (312) 782-0600
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Approximate date of commencement of proposed sale of public: From time to
time after the effective date of this registration statement as the Registrant
shall determine.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_] ____________________________________________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED NOVEMBER 1, 1995
PROSPECTUS
$500,000,000
FMC CORPORATION
COMMON STOCK, PREFERRED STOCK, DEPOSITORY SHARES, DEBT SECURITIES, WARRANTS TO
PURCHASE COMMON STOCK, WARRANTS TO PURCHASE PREFERRED STOCK AND WARRANTS TO
PURCHASE DEBT SECURITIES
FMC Corporation, a Delaware corporation (the "Company"), may from time to
time offer in one or more series (i) shares of Common Stock, $.10 par value per
share ("Common Stock"), (ii) whole or fractional shares of Preferred Stock, no
par value (collectively, "Preferred Stock"), (iii) Preferred Stock represented
by depository shares ("Depository Shares"), (iv) unsecured debt securities
("Debt Securities"), which may be senior debt securities ("Senior Debt
Securities") or subordinated debt securities ("Subordinated Debt Securities"),
(v) warrants to purchase Common Stock ("Common Stock Warrants"), (vi) warrants
to purchase Preferred Stock ("Preferred Stock Warrants"), and (vii) warrants to
purchase Debt Securities ("Debt Warrants"), with an aggregate public offering
price of up to $500,000,000, on terms to be determined at the time or times of
offering. The Common Stock, Preferred Stock, Depository Shares, Debt
Securities, Common Stock Warrants, Preferred Stock Warrants and Debt Warrants
(collectively referred to herein as the "Offered Securities") may be offered,
separately or together, in separate classes or series, in amounts, at prices
and on terms to be set forth in one or more supplements to this Prospectus
(each, a "Prospectus Supplement").
All specific terms of the offering and sale of the Offered Securities in
respect of which this Prospectus is being delivered will be set forth in the
applicable Prospectus Supplement and will include, when applicable: (i) in the
case of Common Stock, any public offering price and the aggregate number of
shares offered; (ii) in the case of Preferred Stock, the specific class,
series, title and stated value, any dividend, liquidation, redemption,
conversion, voting and other rights, any dividend payment dates, any sinking
fund provisions, the aggregate number of shares offered and any public offering
price; (iii) in the case of Depository Shares, the aggregate number of shares
offered, the shares of whole or fractional Preferred Stock represented by each
such Depository Share and any public offering price; (iv) in the case of Debt
Securities, the specific title, aggregate principal amount, ranking as Senior
Debt Securities or as Subordinated Debt Securities, currency, form (which may
be registered or bearer or certificated or global), authorized denominations,
maturity, rate (or manner of calculation thereof) and time of payment of
interest, if any, terms for redemption at the option of the Company or
repayment at the option of the holder thereof, terms for sinking fund payments,
terms for conversion into Common Stock or Preferred Stock and any public
offering price; (v) in the case of Common Stock Warrants, the duration,
offering price, exercise price and detachability features; (vi) in the case of
Preferred Stock Warrants, description of the Preferred Stock for which each
warrant will be exercisable and the duration, offering price, exercise price
and detachability features; and (vii) in the case of Debt Warrants, description
of the Debt Securities for which each warrant will be exercisable and the
duration, offering price, exercise price and detachability features.
The applicable Prospectus Supplement will also contain information, when
applicable, about certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Offered
Securities covered by that Prospectus Supplement.
The Offered Securities may be offered directly, through agents designated
from time to time by the Company, or to or through underwriters or dealers. If
any agents or underwriters are involved in the sale of any of the Offered
Securities, their names and any applicable purchase price, fee, commission or
discount arrangement between or among them will be set forth in or will be
calculable from the information set forth in the applicable Prospectus
Supplement. No Offered Securities may be sold without delivery of the
applicable Prospectus Supplement describing the method and terms of the
offering of those Offered Securities. See "Plan of Distribution" for possible
indemnification arrangements with underwriters, dealers and agents.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------
This Prospectus may not be used to consummate sales of the Offered Securities
unless accompanied by a Prospectus Supplement.
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November , 1995
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR AN APPLICABLE PROSPECTUS
SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER,
DEALER OR AGENT. THIS PROSPECTUS AND ANY APPLICABLE PROSPECTUS SUPPLEMENT DO
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE
DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE
HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF.
IN CONNECTION WITH THIS OFFERING, UNDERWRITERS, IF ANY, MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE
OFFERED SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE
OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE,
IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZATION, IF COMMENCED,
MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
filed by the Company can be inspected and copied at the public reference
facilities maintained by the Commission at Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Commission's Regional Offices at Seven
World Trade Center, 13th Floor, New York, New York 10048 and Citicorp Center,
Suite 1400, 500 West Madison Street, Chicago, Illinois 60661. Copies of such
material can be obtained by mail from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. In addition, reports, proxy statements and other information concerning
the Company may be inspected and copied at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005, the Chicago Stock
Exchange, 440 South LaSalle Street, Chicago, Illinois 60605, and the Pacific
Stock Exchange, Inc., 301 Pine Street, San Francisco, California 94104 or 618
South Spring Street, Los Angeles, California 90014.
The Company has filed with the Commission on September 7, 1995 a Registration
Statement on Form S-3 under the Securities Act of 1933, as amended (the
"Securities Act"), which relates to the Offered Securities (the "Registration
Statement"). This Prospectus does not contain all of the information set forth
in the Registration Statement and the exhibits and schedules thereto as
permitted by the rules and regulations of the Commission. For information with
respect to the Company and the Offered Securities, reference is hereby made to
such Registration Statement, exhibits and schedules. The Registration Statement
may be inspected without charge by anyone at the office of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, and copies of all or any part
thereof may be obtained from the Commission upon payment of the prescribed
fees. Statements contained in this Prospectus as to the contents of any
contract or other document referred to are not necessarily complete, and in
each instance reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in all respects by such reference.
2
<PAGE>
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed with the Commission (File No. 1-2376) are
incorporated herein by reference:
(i) the Company's Annual Report on Form 10-K for the year ended December
31, 1994;
(ii) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1995 and June 30, 1995; and
(iii) the Company's Current Reports on Form 8-K dated February 6, 1995,
April 4, 1995, September 1, 1995 and September 12, 1995.
A description of the Common Stock is incorporated by reference to Item 1 of the
Company's Registration Statement on Form 8-A dated May 12, 1986. A description
of the Company's Preferred Stock Purchase Rights is incorporated by reference
to Item 1 of the Company's Registration Statement on Form 8-A dated March 6,
1986, as amended.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Offered Securities shall be deemed to be
incorporated in this Prospectus by reference and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein (or in the applicable Prospectus
Supplement) or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide, without charge to any person to whom a copy of this
Prospectus is delivered, upon the written or oral request of such person, a
copy of any document incorporated by reference herein other than exhibits to
such documents unless such exhibits are specifically incorporated by reference
in such document. Requests should be directed to Robert L. Day, Secretary, FMC
Corporation, 200 East Randolph Drive, Chicago, Illinois 60601 (telephone: (312)
861-6000).
3
<PAGE>
THE COMPANY
The Company is one of the world's leading producers of chemicals and
machinery for industry, agriculture and government. The Company, incorporated
in 1928, operates on a worldwide basis in selected segments of five broad
markets: Performance Chemicals, Industrial Chemicals, Machinery and Equipment,
Defense Systems and Precious Metals. The Company operates 102 manufacturing
facilities and mines in 25 states and 21 countries. Performance Chemicals
develops, manufactures and markets proprietary specialty chemicals for the
agricultural, food and pharmaceutical industries. Industrial Chemicals
businesses manufacture a wide variety of chemicals including soda ash,
phosphates, hydrogen peroxide and lithium. Major customers include detergent,
glass and paper producers, as well as food processors and other chemical
companies. Machinery and Equipment businesses provide specialized machinery to
the food, petroleum, transportation and material handling industries. Defense
Systems develops, manufactures and supplies ground combat vehicles and naval
weapons systems to the armed forces of the United States and other governments.
In the first quarter of 1994 the Company and Harsco Corporation ("Harsco")
announced the establishment of a joint venture, United Defense, L.P., which was
a combination of certain assets and liabilities of the Company's Defense
Systems Group and Harsco's BMY Combat Systems Division and pursuant to which
the Company is the Managing General Partner with a 60% equity interest. The
Precious Metals business focuses on the exploration of precious metals in Latin
America and the western United States and is conducted by FMC Gold Company. The
Company owns 80% of FMC Gold Company's outstanding Common Stock.
The Company is a corporation organized under the laws of the State of
Delaware. As used hereunder, "FMC" or the "Company" refers to FMC Corporation
and its subsidiaries, unless otherwise indicated by the context. The Company's
principal executive offices are located at 200 East Randolph Drive, Chicago,
Illinois 60601 (telephone number: (312) 861-6000).
4
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USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Offered Securities
for general corporate purposes, which may include the repayment of existing
indebtedness and the financing of capital expenditures and acquisitions.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of the
Company for the periods indicated:
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30, YEAR ENDED DECEMBER 31,
------------------- -----------------------------------------------------------
1995 1994 1994 1993 1992 1991 1990
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
4.5x 5.5x 4.4x 1.5(/1/)x 3.4x 2.8x 2.3x
</TABLE>
- --------
(/1/)The ratio of earnings to fixed charges for the year ended December 31,
1993 before restructuring and other charges was 3.3x.
For purposes of calculating this ratio, earnings consist of income from
continuing operations before income taxes and extraordinary items, plus
minority interests, less undistributed earnings (and plus losses) of
affiliates, plus interest expense and amortization of debt discount, fees and
expenses, plus amortization of capitalized interest, plus one-third of rentals.
Fixed charges consist of interest expense and amortization of debt discount,
fees and expenses, interest capitalized as part of fixed assets and interest
included in rental expense.
GENERAL DESCRIPTION OF THE OFFERED SECURITIES
The Company may offer under this Prospectus Common Stock, Preferred Stock,
Depository Shares, Debt Securities, Common Stock Warrants, Preferred Stock
Warrants, or Debt Warrants or any combination of the foregoing, either
individually or as units consisting of two or more Offered Securities. The
aggregate offering price of Offered Securities offered by the Company under
this Prospectus will not exceed $500,000,000. If Offered Securities are offered
as units, the terms of the units will be set forth in a Prospectus Supplement.
DESCRIPTION OF THE COMMON STOCK
GENERAL
Under the Company's Restated Certificate of Incorporation (the "Certificate
of Incorporation"), the Company is authorized to issue up to 60,000,000 shares
of Common Stock. As of June 30, 1995, there were 36,599,140 shares of Common
Stock issued and outstanding. In addition, up to 3,125,938 shares have been
reserved as of June 30, 1995 for issuance upon the exercise of options and
awards under the Company's incentive compensation plans and deferred stock plan
for non-employee directors. The shares of Common Stock are listed on the New
York Stock Exchange under the symbol "FMC". Harris Trust and Savings Bank,
Chicago, Illinois, is the transfer agent and registrar of the shares of Common
Stock.
The Common Stock is not redeemable, does not have any conversion rights and
is not subject to call. Holders of shares of Common Stock have no preemptive
rights to maintain their percentage of ownership in future offerings or sales
of stock of the Company. Holders of shares of Common Stock have one vote per
share in all elections of directors and on all other matters submitted to a
vote of stockholders of the Company. The holders of Common Stock are entitled
to receive dividends, if any, as and when declared from time to time by the
Board of Directors of the Company out of funds legally available therefor. Upon
liquidation, dissolution or winding up of the affairs of the Company, the
holders of Common Stock will be entitled to participate equally and ratably, in
proportion to the number of shares held, in the net assets of the Company
available for distribution to holders of Common Stock. The shares of Common
Stock currently outstanding
5
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are fully paid and nonassessable. The shares of Common Stock offered hereby,
upon issuance against full payment of the purchase price therefor, will be
fully paid and nonassessable.
CERTAIN CERTIFICATE OF INCORPORATION PROVISIONS
General Effect
The Company has adopted a number of provisions in its Certificate of
Incorporation that might discourage certain types of transactions that involve
an actual or threatened change of control of the Company. The provisions may
make it more difficult and time-consuming to change majority control of the
Board of Directors and thus reduce the vulnerability of the Company to an
unsolicited offer, particularly an offer that does not contemplate the
acquisition of all of the Company's outstanding shares.
These provisions are intended to encourage persons seeking to acquire control
of the Company to initiate such an acquisition through arm's-length
negotiations with the Company's management and Board of Directors.
Additionally, such provisions provide management with the time and information
necessary to evaluate a takeover proposal and to study alternative proposals.
Nonetheless, the provisions could have the effect of discouraging a third party
from making a tender offer or otherwise attempting to obtain control of the
Company, even though such an attempt might be beneficial to the Company and its
stockholders.
Business Combination
The Certificate of Incorporation provides that significant asset sales,
dispositions of stock, liquidations, mergers and certain other business
combinations ("Business Combinations") involving the Company and persons
beneficially owning 10% or more of the voting power of the outstanding shares
of Common Stock (an "Interested Stockholder") must be approved by the holders
of at least 80% of the voting power of the Company's outstanding voting stock
("Voting Stock"). The Certificate of Incorporation requires the affirmative
vote of the holders of 80% or more of the outstanding Voting Stock to amend,
alter or repeal, or to adopt any provisions inconsistent with, such provisions.
Stockholders' Meetings
The Certificate of Incorporation provides that special meetings of the
stockholders may only be called pursuant to a resolution approved by a majority
of the Board of Directors. This limitation prevents a stockholder or group of
stockholders from forcing the Company to conduct a stockholders' meeting at any
time not sanctioned by the Board of Directors, regardless of the number of
shares of Common Stock held by such stockholder or group of stockholders.
No Action by Stockholder Consent
The Company's Certificate of Incorporation prohibits action that is required
or permitted to be taken at any annual or special meeting of stockholders of
the Company from being taken by the written consent of stockholders without a
meeting. This provision may be altered, amended or repealed only if the holders
of 80% or more of Voting Stock vote in favor of such action.
PREFERRED STOCK PURCHASE RIGHTS
The Company has adopted a preferred stock purchase rights plan and has
distributed preferred stock purchase rights (the "Rights") to holders of the
Company's Common Stock. The preferred stock purchase rights plan enables the
holder of such Rights to purchase, under certain circumstances, one one-
hundredth (1/100) of a share of Junior Participating Preferred Stock, Series A,
without par value (the "Series A Preferred Stock"), of the Company at a price
of $75 per one one-hundredth (1/100) of a share, subject to certain
adjustments. The Rights are intended to deter attempts to acquire the Company
on terms not approved by the Company's Board of Directors.
6
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DESCRIPTION OF THE PREFERRED STOCK
Under the Certificate of Incorporation, the Board of Directors of the Company
may direct the issuance of up to 5,000,000 shares of Preferred Stock in one or
more series and with rights, preferences, privileges and restrictions,
including dividend rights, voting rights, conversion rights, terms of
redemption and liquidation preferences, that may be fixed or designated by the
Board of Directors pursuant to a certificate of designation without any further
vote or action by the Company's stockholders. As of June 30, 1995 the Board of
Directors had designated 400,000 shares of the Preferred Stock as Series A
Preferred Stock for possible issuance in connection with the Rights. The
issuance of Preferred Stock may have the effect of delaying, deferring or
preventing a change in control of the Company. Preferred Stock, upon issuance
against full payment of the purchase price therefor, will be fully paid and
nonassessable. The specific terms of a particular series of Preferred Stock
will be described in the Prospectus Supplement relating to that series. The
description of Preferred Stock set forth below and the description of the terms
of a particular series of Preferred Stock set forth in the related Prospectus
Supplement do not purport to be complete and are qualified in their entirety by
reference to the certificate of designation relating to that series. The
related Prospectus Supplement will contain a description of certain United
States federal income tax consequences relating to the purchase and ownership
of the series of Preferred Stock described in such Prospectus Supplement.
As of June 30, 1995 no shares of Preferred Stock were issued or outstanding.
The rights, preferences, privileges and restrictions of the Preferred Stock
of each series will be fixed by the certificate of designation relating to such
series. A Prospectus Supplement, relating to each series, will specify the
terms of the Preferred Stock as follows:
(a) The maximum number of shares to constitute the series and the
distinctive designation thereof;
(b) The annual dividend rate, if any, on shares of the series, whether
such rate is fixed or variable or both, the date or dates from which
dividends will begin to accrue or accumulate and whether dividends will be
cumulative;
(c) The price at and the terms and conditions on which the shares of the
series may be redeemed, including the time during which shares of the
series may be redeemed and any accumulated dividends thereon that the
holders of shares of the series shall be entitled to receive upon the
redemption thereof;
(d) The liquidation preference, if any, and any accumulated dividends
thereon, that the holders of shares of the series shall be entitled to
receive upon the liquidation, dissolution or winding up of the affairs of
the Company;
(e) Whether or not the shares of the series will be subject to operation
of a retirement or sinking fund, and, if so, the extent and manner in which
any such fund shall be applied to the purchase or redemption of the shares
of the series for retirement or for other corporate purposes, and the terms
and provisions relating to the operation of such fund;
(f) The terms and conditions, if any, on which the shares of the series
shall be convertible into, or exchangeable for, shares of any other class
or classes of capital stock of the Company or a third party or of any other
series of the same class, including the price or prices or the rate or
rates of conversion or exchange and the method, if any, of adjusting the
same and whether such conversion is mandatory or optional;
(g) The stated value of the shares of such series;
(h) The voting rights, if any, of the shares of the series; and
(i) Any or all other preferences and relative, participating, optional or
other special rights or qualifications, limitations or restrictions
thereof.
7
<PAGE>
In the event of any voluntary liquidation, dissolution or winding up of the
affairs of the Company, the holders of any series of any class of Preferred
Stock shall be entitled to receive in full out of the assets of the Company,
including its capital, before any amount shall be paid or distributed among the
holders of the Common Stock or any other shares ranking junior to such series,
the amounts fixed by the Board of Directors with respect to such series and set
forth in the applicable Prospectus Supplement plus an amount equal to all
dividends accrued and unpaid thereon to the date of payment of the amount due
pursuant to such liquidation, dissolution or winding up the affairs of the
Company. After payment to the holders of the Preferred Stock of the full
preferential amounts to which they are entitled, the holders of Preferred
Stock, as such, shall have no right or claim to any of the remaining assets of
the Company.
If liquidating distributions shall have been made in full to all holders of
Preferred Stock, the remaining assets of the Company shall be distributed among
the holders of any other classes or series of capital stock ranking junior to
the Preferred Stock upon liquidation, dissolution or winding up, according to
their respective rights and preferences and in each case according to their
respective numbers of shares. The merger or consolidation of the Company into
or with any other corporation, or the sale, lease or conveyance of all or
substantially all of the assets of the Company, shall not constitute a
dissolution, liquidation or winding up of the Company.
DESCRIPTION OF DEPOSITORY SHARES
GENERAL
The Company may offer receipts ("Depository Receipts") for Depository Shares,
each of which will represent a fractional interest in a share of a particular
series of a class of Preferred Stock, as specified in the applicable Prospectus
Supplement. Preferred Stock of each series of each class represented by
Depository Shares will be deposited under a separate Deposit Agreement (each, a
"Deposit Agreement") among the Company, the depository named therein (such
depository or its successor, the "Preferred Stock Depository") and the holders
from time to time of the Depository Receipts. Subject to the terms of the
Deposit Agreement, each owner of a Depository Receipt will be entitled, in
proportion to the fractional interest of a share of the particular series of a
class of Preferred Stock represented by the Depository Shares evidenced by such
Depository Receipt, to all the rights and preferences of the Preferred Stock
represented by such Depository Shares (including dividend, voting, conversion,
redemption and liquidation rights).
The Depository Shares will be evidenced by Depository Receipts issued
pursuant to the applicable Deposit Agreement. Immediately following the
issuance and delivery of the Preferred Stock by the Company to the Preferred
Stock Depository, the Company will cause the Preferred Stock Depository to
issue, on behalf of the Company, the Depository Receipts. Copies of the
applicable form of Deposit Agreement and Depository Receipt may be obtained
from the Company upon request.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depository will distribute all cash dividends or other
cash distributions received in respect of the Preferred Stock to the record
holders of the Depository Receipts evidencing the related Depository Shares in
proportion to the number of such Depository Receipts owned by such holder,
subject to certain obligations of holders to file proofs, certificates and
other information and to pay certain charges and expenses to the Preferred
Stock Depository.
In the event of a distribution other than in cash, the Preferred Stock
Depository will distribute property received by it to the record holders of
Depository Receipts entitled thereto, subject to certain obligations of holders
to file proofs, certificates and other information and to pay certain charges
and expenses to the Preferred Stock Depository, unless the Preferred Stock
Depository determines that it is not feasible to make such distribution, in
which case the Preferred Stock Depository may, with the approval of the
Company, sell such property and distribute the net proceeds from such sale to
such holders.
8
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WITHDRAWAL OF SHARES
Upon surrender of the Depository Receipts at the corporate trust office of
the Preferred Stock Depository (unless the related Depository Shares have
previously been called for redemption), the holders thereof will be entitled to
delivery at such office, to or upon such holder's order, of the number of whole
shares of Preferred Stock and any money or other property represented by the
Depository Shares evidenced by such Depository Receipts. Holders of Depository
Receipts will be entitled to receive whole shares of the related Preferred
Stock on the basis of the proportion of Preferred Stock represented by each
Depository Share as specified in the applicable Prospectus Supplement, but
holders of such Preferred Stock will not thereafter be entitled to receive
Depository Shares therefor. If the Depository Receipts delivered by the holder
evidence a number of Depository Shares in excess of the number of Depository
Shares representing the number of shares of Preferred Stock to be withdrawn,
the Preferred Stock Depository will deliver to such holder at the same time a
new Depository Receipt evidencing such excess number of Depository Shares.
REDEMPTION OF DEPOSITORY SHARES
Whenever the Company redeems Preferred Stock held by the Preferred Stock
Depository, the Preferred Stock Depository will redeem as of the same
redemption date the number of Depository Shares representing the Preferred
Stock so redeemed, provided the Company shall have paid in full to the
Preferred Stock Depository the redemption price of the Preferred Stock to be
redeemed plus an amount equal to any accrued and unpaid dividends (except, with
respect to noncumulative shares of Preferred Stock, dividends for the current
dividend period only) thereon to the date fixed for redemption. The redemption
price per Depository Share will be equal to the redemption price and any other
amounts per share payable with respect to the Preferred Stock. If less than all
the Depository Shares are to be redeemed, the Depository Shares to be redeemed
will be selected by the Preferred Stock Depository by lot.
After the date fixed for redemption, the Depository Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depository Receipts evidencing the Depository Shares so called
for redemption will cease, except the right to receive any moneys payable upon
such redemption and any money or other property to which the holders of such
Depository Receipts were entitled upon such redemption upon surrender thereof
to the Preferred Stock Depository.
VOTING OF THE UNDERLYING PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Preferred Stock Depository will mail the
information contained in such notice of meeting to the record holders of the
Depository Receipts evidencing the Depository Shares which represent such
Preferred Stock. Each record holder of Depository Receipts evidencing
Depository Shares on the record date (which will be the same date as the record
date for the Preferred Stock) will be entitled to instruct the Preferred Stock
Depository as to the exercise of the voting rights pertaining to the amount of
Preferred Stock represented by such holder's Depository Shares. The Preferred
Stock Depository will vote the amount of Preferred Stock represented by such
Depository Shares in accordance with such instructions, and the Company will
agree to take all reasonable action which may be deemed necessary by the
Preferred Stock Depository in order to enable the Preferred Stock Depository to
do so. The Preferred Stock Depository will abstain from voting the amount of
Preferred Stock represented by such Depository Shares to the extent it does not
receive specific instructions from the holders of Depository Receipts
evidencing such Depository Shares.
LIQUIDATION PREFERENCE
In the event of liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, each holder of a Depository Receipt will be
entitled to the fraction of the liquidation preference accorded each share of
Preferred Stock represented by the Depository Share evidenced by such
Depository Receipt, as set forth in the applicable Prospectus Supplement.
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CONVERSION OF PREFERRED STOCK
The Depository Shares, as such, are not convertible into Common Stock or any
securities or property of the Company. Nevertheless, if so specified in the
applicable Prospectus Supplement relating to an offering of Depository Shares,
the Depository Receipts may be surrendered by holders thereof to the Preferred
Stock Depository with written instructions to the Preferred Stock Depository to
instruct the Company to cause conversion of the Preferred Stock represented by
the Depository Shares evidenced by such Depository Receipts into whole shares
of Common Stock, other Preferred Stock of the Company or other shares of
capital stock, and the Company has agreed that upon receipt of such
instructions and any amounts payable in respect thereof, it will cause the
conversion thereof utilizing the same procedures as those provided for delivery
of Preferred Stock to effect such conversion. If the Depository Shares
evidenced by a Depository Receipt are to be converted in part only, one or more
new Depository Receipts will be issued for any Depository Shares not to be
converted. No fractional shares of Common Stock will be issued upon conversion,
and if such conversion will result in a fractional share being issued, an
amount will be paid in cash by the Company equal to the value of the fractional
interest based upon the closing price of the Common Stock on the last business
day prior to the conversion.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depository Receipt evidencing the Depository Shares which
represent the Preferred Stock and any provision of the Deposit Agreement may at
any time be amended by agreement between the Company and the Preferred Stock
Depository. However, any amendment that materially and adversely alters the
rights of the holders of Depository Receipts will not be effective unless such
amendment has been approved by the existing holders of at least a majority of
the Depository Shares evidenced by the Depository Receipts then outstanding.
The Deposit Agreement may be terminated by the Company upon not less than 30
days' prior written notice to the Preferred Stock Depository if a majority of
each class of Depository Shares affected by such termination consents to such
termination, whereupon the Preferred Stock Depository shall deliver or make
available to each holder of Depository Receipts, upon surrender of the
Depository Receipts held by such holder, such number of whole or fractional
shares of Preferred Stock as are represented by the Depository Shares evidenced
by such Depository Receipts. In addition, the Deposit Agreement will
automatically terminate if (i) all outstanding Depository Shares shall have
been redeemed, (ii) there shall have been a final distribution in respect of
the related Preferred Stock in connection with any liquidation, dissolution or
winding up of the Company and such distribution shall have been distributed to
the holders of Depository Receipts evidencing the Depository Shares
representing such Preferred Stock or (iii) each related share of Preferred
Stock shall have been converted into capital stock of the Company not so
represented by Depository Shares.
CHARGES OF PREFERRED STOCK DEPOSITORY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the Deposit Agreement. In addition, the
Company will pay the fees and expenses of the Preferred Stock Depository in
connection with the performance of its duties under the Deposit Agreement.
However, holders of the Depository Receipts will pay the fees and expenses of
the Preferred Stock Depository for any duties requested by such holders to be
performed which are outside of those expressly provided for in the Deposit
Agreement.
RESIGNATION AND REMOVAL OF PREFERRED STOCK DEPOSITORY
The Preferred Stock Depository may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at any time remove
the Preferred Stock Depository, any such resignation or removal to take effect
upon the appointment of a successor Preferred Stock Depository. A
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successor Preferred Stock Depository must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a bank or trust
company having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000.
MISCELLANEOUS
The Preferred Stock Depository will forward to holders of Depository Receipts
any reports and communications from the Company that are received by the
Preferred Stock Depository with respect to the related Preferred Stock.
Neither the Preferred Stock Depository nor the Company will be liable if it
is prevented from or delayed in, by law or any circumstances beyond its
control, performing its obligations under the Deposit Agreement. The
obligations of the Company and the Preferred Stock Depository under the Deposit
Agreement will be limited to performing their duties thereunder in good faith
and without gross negligence or willful misconduct, and the Company and the
Preferred Stock Depository will not be obligated to prosecute or defend any
legal proceeding in respect of any Depository Receipts, Depository Shares or
Preferred Stock represented thereby unless satisfactory indemnity is furnished.
The Company and the Preferred Stock Depository may rely on written advice of
counsel or accountants, or information provided by persons presenting Preferred
Stock represented thereby for deposit, holders of Depository Receipts or other
persons believed to be competent to give such information, and on documents
believed to be genuine and signed by a proper party.
If the Preferred Stock Depository shall receive conflicting claims, requests
or instructions from any holders of Depository Receipts, on the one hand, and
the Company, on the other hand, the Preferred Stock Depository shall be
entitled to act on such claims, requests or instructions received from the
Company.
DESCRIPTION OF THE DEBT SECURITIES
The Senior Debt Securities will be issued under an Indenture, as amended or
supplemented from time to time (the "Senior Indenture"), between the Company
and Harris Trust and Savings Bank, as trustee (the "Trustee"). The Subordinated
Debt Securities will be issued under an Indenture, as amended or supplemented
from time to time (the "Subordinated Indenture"), between the Company and the
Trustee. The Senior Indenture and the Subordinated Indenture are sometimes
referred to herein collectively as the "Indentures" and each individually as an
"Indenture".
The forms of the Indentures have been filed as exhibits to the Registration
Statement of which this Prospectus is a part and are available for inspection
at the corporate trust office of the Trustee at 111 West Monroe Street,
Chicago, Illinois 60603. The Indentures are subject to, and are governed by,
the Trust Indenture Act of 1939, as amended. The statements made hereunder
relating to the Indentures and the Debt Securities to be issued hereunder are
summaries of certain provisions thereof and do not purport to be complete and
are subject to, and are qualified in their entirety by reference to, all
provisions of the Indentures and such Debt Securities. All section references
appearing in this section "Description of Debt Securities" are to sections of
the applicable Indenture, and capitalized terms used but not defined herein
shall have the respective meanings set forth in the applicable Indenture.
GENERAL
The Indentures do not limit the amount of Debt Securities that can be issued
thereunder and provide that Debt Securities of any series may be issued
thereunder up to the aggregate principal amount which may be authorized from
time to time by the Company. The Indentures do not limit the amount of other
indebtedness or securities, other than certain secured indebtedness as
described below which is limited by the Senior Indenture, that may be issued by
the Company or its subsidiaries.
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The Debt Securities will be direct, unsecured obligations of the Company and
will constitute Senior Debt Securities and/or Subordinated Debt Securities.
Creditors of the Company's subsidiaries are entitled to a claim on the assets
of such subsidiaries. Consequently, in the event of a liquidation or
reorganization of any subsidiary, creditors of the subsidiary are likely to be
paid in full before any distribution is made to the Company and holders of Debt
Securities, except to the extent that the Company is itself recognized as a
creditor of such subsidiary, in which case the claims of the Company would
still be subordinate to any security interests in the assets of such subsidiary
and any indebtedness of such subsidiary senior to that held by the Company.
Reference is made to the Prospectus Supplement for the following and other
possible terms of each series of the Debt Securities in respect of which this
Prospectus is being delivered: (i) the title of the Debt Securities; (ii) any
limit upon the aggregate principal amount of the Debt Securities; (iii) if
other than 100% of the principal amount, the percentage of their principal
amount at which the Debt Securities will be offered; (iv) the date or dates on
which the principal of the Debt Securities will be payable (or method of
determination thereof); (v) the rate or rates (or method of determination
thereof) at which the Debt Securities will bear interest, if any, the date or
dates from which any such interest will accrue and on which such interest will
be payable, and the record dates for the determination of the holders to whom
interest is payable; (vi) if other than as set forth herein, the place or
places where the principal of and interest, if any, on the Debt Securities will
be payable; (vii) the price or prices at which, the period or periods within
which and the terms and conditions upon which Debt Securities may be redeemed,
in whole or in part, at the option of the Company; (viii) if other than the
principal amount thereof, the portion of the principal amount of the Debt
Securities payable upon declaration of acceleration of the maturity thereof;
(ix) the obligation, if any, of the Company to redeem, repurchase or repay Debt
Securities, whether pursuant to any sinking fund or analogous provisions or
pursuant to other provisions set forth therein or at the option of a Holder
thereof; (x) whether the Debt Securities will be represented in whole or in
part by one or more global notes registered in the names of a depository or its
nominee; (xi) any conversion or exchange provisions and whether such conversion
or exchange is optional or mandatory; (xii) the ranking of such Debt Securities
as Senior Debt Securities or Subordinated Debt Securities; and (xiii) any other
terms or conditions not inconsistent with the provisions of the Indenture under
which the Debt Securities will be issued. (Section 2.3) "Principal" when used
herein includes, when appropriate, the premium, if any, on the Debt Securities.
Unless otherwise provided in the Prospectus Supplement relating to any Debt
Securities, principal and interest, if any, will be payable, and the Debt
Securities will be transferable, at the office or offices or agency maintained
by the Company for such purposes, provided that payment of interest on the Debt
Securities will be paid at such place of payment by check mailed to the persons
entitled thereto at the addresses of such persons appearing on the Security
register. Interest on the Debt Securities will be payable on any interest
payment date to the persons in whose name the Debt Securities are registered at
the close of business on the record date with respect to such interest payment
date.
The Debt Securities may be issued only in fully registered form in minimum
denominations of $1,000 and any integral multiple thereof. Additionally, the
Debt Securities may be represented in whole or in part by one or more global
notes registered in the name of a depository or its nominee and, if so
represented, interests in such global note will be shown on, and transfers
thereof will be effected only through, records maintained by the designated
depository and its participants.
The Debt Securities may be exchanged for an equal aggregate principal amount
of Debt Securities of the same series and date of maturity in such authorized
denominations as may be requested upon surrender of the Debt Securities at an
agency of the Company maintained for such purpose and upon fulfillment of all
other requirements of such agent. No service charge will be made for any
transfer or exchange of the Debt Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. (Section 2.8)
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The Indentures require the annual filing by the Company with the Trustee of a
certificate as to compliance with certain covenants contained in the
Indentures. (Section 3.4)
The Company will comply with Section 14(e) under the Exchange Act, to the
extent applicable, and any other tender offer rules under the Exchange Act
which may then be applicable, in connection with any obligation of the Company
to purchase Debt Securities at the option of the holders thereof. Any such
obligation applicable to a series of Debt Securities will be described in the
Prospectus Supplement relating thereto.
Unless otherwise described in a Prospectus Supplement relating to any Debt
Securities, there are no covenants or provisions contained in the Indentures
which may afford the holders of Debt Securities protection in the event of a
highly leveraged transaction involving the Company.
CONVERSION AND EXCHANGE
The terms, if any, on which Debt Securities of any series are convertible
into or exchangeable for Common Stock or Preferred Stock, property or cash, or
a combination of any of the foregoing, will be set forth in the Prospectus
Supplement relating thereto. Such terms may include provisions for conversion
or exchange, either mandatory, at the option of the holder, or at the option of
the Company, in which the number of shares of Common Stock or Preferred Stock
to be received by the holders of the Debt Securities would be calculated
according to the factors and at such time as set forth in the related
Prospectus Supplement.
COVENANTS APPLICABLE TO SENIOR DEBT SECURITIES
Limitations on Liens
The Senior Indenture provides that, so long as any of the Senior Debt
Securities of a series remain outstanding, the Company will not, nor will it
permit any Restricted Subsidiary (as hereinafter defined) to, secure
indebtedness for money borrowed ("Secured Debt") by placing a Lien (as
hereinafter defined) on any Principal Property (as hereinafter defined) now or
hereafter owned by the Company or any Restricted Subsidiary or on any shares of
stock or securing indebtedness for money borrowed of any Restricted Subsidiary
without equally and ratably securing the Debt Securities of such series, unless
(i) the aggregate principal amount of such Secured Debt then outstanding plus
(ii) all Attributable Debt (as hereinafter defined) of the Company and its
Restricted Subsidiaries in respect of sale and leaseback transactions described
below covering Principal Properties (other than sale and leaseback transactions
under (b) of the following paragraph) does not exceed an amount equal to 10% of
Consolidated Net Tangible Assets (as hereinafter defined). This restriction
will not apply to, and there shall be excluded in computing such Secured Debt
for purposes of this restriction, certain permitted Liens, including (a) with
respect to each series of Senior Debt Securities, Liens existing as of the date
of the issuance of Senior Debt Securities of such series; (b) Liens on property
or assets of, or any shares of stock or securing indebtedness for money
borrowed of, any corporation existing at the time such corporation becomes a
Restricted Subsidiary; (c) Liens on property or assets or shares of stock or
securing indebtedness for money borrowed existing at the time of acquisition
(including acquisition through merger or consolidation) and certain Liens to
secure indebtedness incurred prior to, at the time of or within 120 days after
the later of the acquisition of, or the completion of the construction of and
commencement of operation of, any such property, for the purpose of financing
all or any part of the purchase price or construction cost thereof; (d) Liens
to secure certain development, operation, construction, alteration, repair or
improvement costs; (e) Liens in favor of, or which secure indebtedness owing
to, the Company or a Restricted Subsidiary; (f) Liens in connection with
government contracts, including the assignment of moneys due or to come due
thereon; (g) certain Liens in connection with legal proceedings to the extent
such proceedings are being contested in good faith; (h) certain Liens arising
in the ordinary course of business and not in connection with the borrowing of
money such as mechanics', materialmens', carriers'
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or other similar Liens; (i) Liens on property securing obligations issued by a
domestic governmental issuer to finance the cost of acquisition or construction
of such property; and (j) extensions, substitutions, replacements or renewals
of the foregoing. (Section 3.5)
Limitations on Sale and Leaseback Transactions
The Senior Indenture provides that, so long as any of the Senior Debt
Securities of a series remain outstanding, the Company will not, nor will it
permit any Restricted Subsidiary to, enter into any sale and leaseback
transaction (except a lease for a period not exceeding three years) covering
any Principal Property which was or is owned by the Company or a Restricted
Subsidiary and which has been or is to be sold or transferred more than 120
days after such property has been owned by the Company or such Restricted
Subsidiary and completion of construction and commencement of full operation
thereof, unless (a) the Attributable Debt in respect thereto and all other sale
and leaseback transactions entered into after the date of the first issuance of
Senior Debt Securities of such series (other than those the proceeds of which
are applied to reduce indebtedness or acquire additional property under (b)
following), plus the aggregate principal amount of then outstanding Secured
Debt not otherwise permitted or excepted without equally and ratably securing
the Senior Debt Securities does not exceed 10% of Consolidated Net Tangible
Assets; or (b) an amount equal to the value of the Principal Property sold and
leased back is applied within 120 days after the sale or transfer to (x) the
voluntary retirement of Funded Debt (as hereinafter defined), including Senior
Debt Securities, or (y) the acquisition of properties, facilities or equipment
used for general operating purposes for the Company or any Restricted
Subsidiary. (Section 3.6)
Certain Definitions
The term "Subsidiary" is defined to mean (i) a corporation, a majority of
whose capital stock with voting power, under ordinary circumstances, to elect
directors is, at the date of determination, directly or indirectly owned by the
Company, by one or more Subsidiaries of the Company or by the Company and one
or more Subsidiaries of the Company, (ii) a partnership in which the Company or
a Subsidiary of the Company holds a majority interest in the equity capital or
profits of such partnership, or (iii) any other person (other than a
corporation) in which the Company, a Subsidiary of the Company or the Company
and one or more Subsidiaries of the Company, directly or indirectly, at the
date of determination, has (x) at least a majority ownership interest or (y)
the power to elect or direct the election of a majority of the directors or
other governing body of such person.
The term "Restricted Subsidiary" is defined to mean any Subsidiary (other
than FMC Gold Company) (i) substantially all the property of which is located
within the continental United States of America or Canada and (ii) which owns
or leases a Principal Property.
The term "Principal Property" is defined to mean any manufacturing or
processing plant or facility (other than any pollution control facility) or any
mineral producing property which is located within the continental United
States of America and is owned by the Company or any Subsidiary, whether owned
at or acquired after the date of the applicable Indenture, the gross book value
on the books of the Company or such Subsidiary (without deduction of any
depreciation reserve) of which on the date as of which the determination is
being made exceeds 1% of Consolidated Net Tangible Assets, other than any such
property, plant or facility, or any portion thereof, which in the opinion of
the Board of Directors is not of material importance to the total business
conducted by the Company and its Restricted Subsidiaries as an entirety or
which is financed with certain tax exempt securities.
The term "Attributable Debt", in respect of the sale and leaseback
transactions described above, is defined to mean the amount determined by
multiplying the greater, at the time such transaction is entered into, of (i)
the fair value of the property, plant or facility subject to such arrangement
(as determined by the Company); or (ii) the net proceeds of the sale of such
property, plant or facility to the lender or investor, by a fraction of which
the numerator shall be the unexpired initial term of the lease of such real
property as of the
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date of determination of such computation and of which the denominator shall be
the full initial term of such lease. Sale and leasebacks with respect to
facilities financed with certain tax exempt securities are excepted from the
definition.
The term "Consolidated Net Tangible Assets" is defined to mean the aggregate
amount of assets (less applicable reserves and other properly deductible items)
after deducting therefrom (a) all current liabilities (excluding any thereof
constituting Funded Debt by reason of being extendible or renewable); and (b)
all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all as set forth on the books and records
of the Company and its consolidated subsidiaries and computed in accordance
with generally accepted accounting principles.
The term "Funded Debt" is defined to mean all indebtedness whether or not
evidenced by a bond, debenture, note or similar instrument or agreement, for
the repayment of money borrowed, having a maturity of more than 12 months from
the date of its creation or having a maturity of less than 12 months from the
date of its creation but by its terms being renewable or extendible beyond 12
months from such date at the option of the borrower. For the purpose of
determining "Funded Debt" of any corporation, there shall be excluded any
particular indebtedness if, on or prior to the maturity thereof, there shall
have been deposited with the proper depository in trust the necessary funds for
the payment, redemption or satisfaction of such indebtedness. (Section 1.1)
The term "Lien" is defined to mean any pledge, mortgage or other lien
(including lease purchase, installment purchase and other title retention
financing arrangements) on or in respect of any Principal Property owned by the
Company or any Restricted Subsidiary, or on any shares of stock or indebtedness
for money borrowed of any Restricted Subsidiary. (Section 3.5)
EVENTS OF DEFAULT
An Event of Default with respect to the Debt Securities of any series is
defined in the Indentures as: (i) default in the payment of any installment of
interest upon any of the Debt Securities of such series as and when the same
shall become due and payable, and continuance of such default for a period of
30 days; (ii) default in the payment of all or any part of the principal of any
of the Debt Securities of such series as and when the same shall become due and
payable either at maturity, upon any redemption, by declaration or otherwise;
(iii) default in the performance, or breach, of any other covenant or warranty
of the Company contained in the Debt Securities of such series or set forth in
the applicable Indenture (other than a covenant or warranty included in the
applicable Indenture solely for the benefit of a series of Debt Securities
other than such series) and continuance of such default or breach for a period
of 90 days after due notice by the Trustee or by the holders of at least 25% in
principal amount of the outstanding securities of that series; or (iv) certain
events of bankruptcy, insolvency or reorganization of the Company. (Section
5.1) Additional Events of Default may be added for the benefit of holders of
certain series of Debt Securities which, if added, will be described in the
Prospectus Supplement relating to such Debt Securities. The Indentures provide
that the Trustee shall notify the holders of Debt Securities of each series of
any continuing default known to the Trustee which has occurred with respect to
that series within 90 days after the occurrence thereof. The Indentures provide
that notwithstanding the foregoing, except in the case of default in the
payment of the principal of, or interest, if any, on any of the Debt Securities
of such series, the Trustee may withhold such notice if the Trustee in good
faith determines that the withholding of such notice is in the interests of the
holders of Debt Securities of such series. (Section 6.5)
The Indentures provide that if an Event of Default with respect to any series
of Debt Securities shall have occurred and be continuing, either the Trustee or
the holders of not less than 25% in aggregate principal amount of Debt
Securities of that series then outstanding may declare the principal amount of
all Debt Securities of that series to be due and payable immediately, but upon
certain conditions such declaration may be annulled. (Section 5.1) Any past
defaults and the consequences thereof (except a default in the payment of
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principal of or interest, if any, on Debt Securities of that series) may be
waived by the holders of a majority in principal amount of the Debt Securities
of that series then outstanding. (Section 5.9) The Senior Indenture also
permits the Company to omit compliance with certain covenants in such
Indentures with respect to Senior Debt Securities of any series upon waiver by
the holders of a majority in principal amount of the Senior Debt Securities of
such series then outstanding. (Section 3.7)
Subject to the provisions of the Indentures relating to the duties of the
Trustee, in case an Event of Default with respect to any series of Debt
Securities shall occur and be continuing, the Trustee shall not be under any
obligation to exercise any of the trusts or powers vested in it by the
Indentures at the request or direction of any of the holders of that series,
unless such holders shall have offered to such Trustee reasonable security or
indemnity. (Sections 6.1 and 6.2) The holders of a majority in aggregate
principal amount of the Debt Securities of each series affected and then
outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee under the
applicable Indenture or exercising any trust or power conferred on the Trustee
with respect to the Debt Securities of that series; provided that the Trustee
may refuse to follow any direction which is in conflict with any law or such
Indenture and subject to certain other limitations. (Section 5.8)
No holder of any Debt Security of any series will have any right by virtue or
by availing of any provision of the Indentures to institute any proceeding at
law or in equity or in bankruptcy or otherwise upon or under or with respect to
the Indentures or for any remedy thereunder, unless such holder shall have
previously given the Trustee written notice of an Event of Default with respect
to Debt Securities of that series and unless the holders of at least 25% in
aggregate principal amount of the outstanding Debt Securities of that series
shall also have made written request, and offered reasonable indemnity, to the
Trustee to institute such proceeding as trustee and the Trustee shall have
failed to institute such proceeding within 60 days after its receipt of such
request, and the Trustee shall not have received from the holders of a majority
in aggregate principal amount of the outstanding Debt Securities of that series
a direction inconsistent with such request. (Section 5.5) However, the right of
a holder of any Debt Security to receive payment of the principal of and
interest, if any, on such Debt Security on or after the due dates expressed in
such Debt Security, or to institute suit for the enforcement of any such
payment on or after such dates, shall not be impaired or affected without the
consent of such holder. (Section 5.6)
MERGER
Each Indenture provides that the Company may consolidate with, or sell,
convey or lease all or substantially all of its assets to, or merge with or
into, any other corporation, if (i) either the Company is the continuing
corporation or the successor corporation is a domestic corporation and
expressly assumes the due and punctual payment of the principal of and interest
on all the Debt Securities outstanding under such Indenture according to their
tenor and the due and punctual performance and observance of all of the
covenants and conditions of such Indenture to be performed or observed by the
Company; and (ii) the Company or such successor corporation, as the case may
be, is not, immediately after such merger or consolidation, or such sale,
conveyance or lease, in material default in the performance or observance of
any such covenant or condition. (Section 9.1)
SATISFACTION AND DISCHARGE OF INDENTURES
The Indenture with respect to any series of Debt Securities (except for
certain specified surviving obligations including, among other things, the
Company's obligation to pay the principal of and interest on the Debt
Securities of such series) will be discharged and cancelled upon the
satisfaction of certain conditions, including the payment of all the Debt
Securities of such series or the deposit with the Trustee under such Indenture
of cash or appropriate Government Obligations or a combination thereof
sufficient for such payment or redemption in accordance with the applicable
Indenture and the terms of the Debt Securities of such series. (Section 10.1)
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MODIFICATION OF THE INDENTURES
The Indentures contain provisions permitting the Company and the Trustee
thereunder, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debt Securities of each series at the time
outstanding under the applicable Indenture, to execute supplemental indentures
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, the applicable Indenture or any supplemental indenture with
respect to the Debt Securities of such series or modifying in any manner the
rights of the holders of the Debt Securities of such series; provided that no
such supplemental indenture may (i) extend the final maturity of any Debt
Security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of any interest thereon, or reduce any amount payable on
redemption thereof, or impair or affect the right of any holder of Debt
Securities to institute suit for payment thereof or, if the Debt Securities
provide therefor, any right of repayment at the option of the holders of the
Debt Securities, without the consent of the holder of each Debt Security so
affected or (ii) reduce the aforesaid percentage of Debt Securities of such
series, the consent of the holders of which is required for any such
supplemental indenture, without the consent of the holders of all Debt
Securities of such series so affected. (Section 8.2) Additionally, in certain
prescribed instances, the Company and the Trustee may execute supplemental
indentures without the consent of the holders of Debt Securities. (Section 8.1)
DEFEASANCE AND COVENANT DEFEASANCE
The Indentures provide, if such provision is made applicable to the Debt
Securities of any series, that the Company may elect either (a) to terminate
(and be deemed to have satisfied) all its obligations with respect to such Debt
Securities (except for the obligations to register the transfer or exchange of
such Debt Securities, to replace mutilated, destroyed, lost or stolen Debt
Securities, to maintain an office or agency in respect of the Debt Securities,
to compensate and indemnify the Trustee and to punctually pay or cause to be
paid the principal of, and interest, if any, on all Debt Securities of such
series when due) ("defeasance"); or (b) in the case of the Senior Indenture, to
be released from its obligations with respect to Senior Debt Securities under
Sections 3.5 and 3.6 of the Senior Indenture (being the restrictions described
above under "Limitations on Liens" and "Limitations on Sale and Leaseback
Transactions") ("covenant defeasance"), upon the deposit with the Trustee, in
trust for such purpose, of 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 (in the opinion of a nationally
recognized firm of independent public accountants) to pay the principal of and
premium and interest, if any, on the outstanding Debt Securities of such
series, and any mandatory sinking fund or analogous payments thereon, on the
scheduled due dates therefor. Such a trust may be established only if, among
other things, the Company has delivered to the Trustee an opinion of counsel
(as specified in the applicable Indenture) with regard to certain matters,
including an opinion to the effect that the Holders of such Debt Securities
will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit and discharge and will be subject to 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 and defeasance or covenant defeasance, as the
case may be, had not occurred. The Prospectus Supplement may further describe
these or other provisions, if any, permitting defeasance or covenant defeasance
with respect to the Debt Securities of any series. (Section 10.1)
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
The Senior Debt Securities will constitute part of the Senior Indebtedness
(as defined below) of the Company and will rank pari passu with all outstanding
senior debt. Except as set forth in the related Prospectus Supplement, the
Subordinated Debt Securities will be subordinated, in right of payment, to the
prior payment in full of the Senior Indebtedness (as defined below), including
the Senior Debt Securities, whether outstanding at the date of the Subordinated
Indenture or thereafter incurred, assumed or guaranteed. The term "Senior
Indebtedness" means (1) the principal of and premium, if any, and unpaid
interest on
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indebtedness for money borrowed, (2) purchase money and similar obligations,
(3) obligations under capital leases, (4) guarantees, assumptions or purchase
commitments relating to, or other transactions as a result of which the Company
is responsible for the payment of, such indebtedness of others, (5) renewals,
extensions and refunding of any such indebtedness, (6) interest or obligations
in respect of any such indebtedness accruing after the commencement of any
insolvency or bankruptcy proceedings and (7) obligations associated with
derivative products such as interest rate and currency exchange contracts,
foreign exchange contracts, commodity contracts, and similar arrangements,
unless, in each case, the instrument by which the Company incurred, assumed or
guaranteed the indebtedness or obligations described in clauses (1) through (7)
hereof expressly provides that such indebtedness or obligation is not senior in
right of payment to the Subordinated Debt Securities.
Upon any distribution of assets of the Company in connection with any
dissolution, winding up, liquidation or reorganization of the Company, whether
in a bankruptcy, insolvency, reorganization or receivership proceeding or upon
an assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of the Company or otherwise, except a distribution in
connection with a merger or consolidation or a conveyance or transfer of all or
substantially all of the properties of the Company in accordance with the
Subordinated Indenture, the holders of all Senior Indebtedness shall first be
entitled to receive payment of the full amount due thereon, or provision shall
be made for such payment in money or money's worth, before the holders of any
of the Subordinated Debt Securities are entitled to receive any payment in
respect of the Subordinated Debt Securities. In the event that a payment
default shall have occurred and be continuing with respect to the Senior
Indebtedness, the holders of all Senior Indebtedness shall first be entitled to
receive payment of the full amount due thereon, or provision shall be made for
such payment in money or money's worth, before the holders of any of the
Subordinated Debt Securities are entitled to receive any payment in respect of
the Subordinated Debt Securities. In the event that the principal of the
Subordinated Debt Securities of any series shall have been declared due and
payable pursuant to the Subordinated Indenture and such declaration shall not
have been rescinded and annulled, the holders of all Senior Indebtedness
outstanding at the time of such declaration shall first be entitled to receive
payment of the full amount due thereon, or provision shall be made for such
payment in money or money's worth, before the holders of any of the
Subordinated Debt Securities are entitled to receive any payment in respect of
the Subordinated Debt Securities.
This subordination will not prevent the occurrence of any event of default
with respect to the Subordinated Debt Securities. There is no limitation on the
issuance of additional Senior Indebtedness in the Subordinated Indenture.
GLOBAL DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the form
of one or more global securities (each, a "Global Security") that will be
deposited with, or on behalf of, a Debt Depository identified in the applicable
Prospectus Supplement. Global Securities may be issued in either registered or
bearer form and in either temporary or permanent form. Unless otherwise
provided in such Prospectus Supplement, Debt Securities that are represented by
a Global Security will be issued in denominations of $1,000 or any integral
multiple thereof and will be issued in registered form only, without coupons.
Payments of principal of, and interest, if any, on Debt Securities represented
by a Global Security will be made by the Company to the Trustee under the
applicable Indenture, and then forwarded to the Debt Depository.
The Company anticipates that any Global Securities will be deposited with, or
on behalf of, The Depository Trust Company, New York, New York ("DTC"), and
that such Global Securities will be registered in the name of Cede & Co., DTC's
nominee. The Company further anticipates that the following provisions will
apply to the depository arrangements with respect to any such Global
Securities. Any additional or differing terms of the depository arrangements
will be described in the Prospectus Supplement relating to a particular series
of Debt Securities issued in the form of Global Securities.
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<PAGE>
So long as DTC or its nominee is the registered owner of a Global Security,
DTC or its nominee, as the case may be, will be considered the sole Holder of
the Debt Securities represented by such Global Security for all purposes under
the applicable Indenture. Except as described below, owners of beneficial
interests in a Global Security will not be entitled to have Debt Securities
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Debt Securities in certificated
form and will not be considered the owners or Holders thereof under the
applicable Indenture. The laws of some states require that certain purchasers
of securities take physical delivery of such securities in certificated form;
accordingly, such laws may limit the transferability of beneficial interests in
a Global Security.
If DTC is at any time unwilling or unable to continue as depository or if at
any time DTC ceases to be a clearing agency registered under the Exchange Act
if so required by applicable law or regulation, and, in either case, a
successor Debt Depository is not appointed by the Company within 90 days, the
Company will issue individual Debt Securities in certificated form in exchange
for the Global Securities. In addition, the Company may at any time, and in its
sole discretion, determine not to have any Debt Securities represented by one
or more Global Securities, and, in such event, will issue individual Debt
Securities in certificated form in exchange for the relevant Global Securities.
In any such instance, an owner of a beneficial interest in a Global Security
will be entitled to physical delivery of individual Debt Securities in
certificated form of like tenor and rank, equal in principal amount to such
beneficial interest, and to have such Debt Securities in certificated form
registered in its name. Unless otherwise described in the applicable Prospectus
Supplement, Debt Securities so issued in certificated form will be issued in
denominations of $1,000 or any integral multiple thereof, and will be issued in
registered form only, without coupons.
DTC will act as securities depository for the Debt Securities. The Debt
Securities will be issued as fully registered securities registered in the name
of Cede & Co. (DTC's partnership nominee). One fully registered Debt Security
certificate will be issued with respect to each $200 million of principal
amount of the Debt Securities of a series, and an additional certificate will
be issued with respect to any remaining principal amount of such series.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations ("Direct Participants"). DTC is
owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc. Access to the DTC system is also available to
others, such as securities brokers and dealers, and banks and trust companies
that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The rules
applicable to DTC and its Participants are on file with the Commission.
Purchases of Debt Securities under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Debt Securities on
DTC's records. The ownership interest of each actual purchaser of each Debt
Security ("Beneficial Owner") is in turn recorded on the Direct and Indirect
Participants' records. A Beneficial Owner does not receive written confirmation
from DTC of its purchase, but is expected to received a written confirmation
providing details of the transaction, as well as periodic statements of its
holdings, from the Direct or Indirect Participants through which such
Beneficial Owner entered into the action. Transfers of ownership interests in
Debt Securities are accomplished by entries made on the books of Participants
acting on behalf of Beneficial Owners. Beneficial Owners do not receive
certificates representing their ownership interests in Debt Securities, except
in the event that use of the book-entry system for the Debt Securities is
discontinued.
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To facilitate subsequent transfers, the Debt Securities are registered in the
name of DTC's partnership nominee, Cede & Co. The deposit of the Debt
Securities with DTC and their registration in the name of Cede & Co. will
effect no change in beneficial ownership. DTC has no knowledge of the actual
Beneficial Owners of the Debt Securities; DTC records reflect only the identity
of the Direct Participants to whose accounts Debt Securities are credited,
which may or may not be the Beneficial Owners. The Participants remain
responsible for keeping account of their holdings on behalf of their customers.
Delivery of notice and other communications by DTC to Direct Participants, by
Direct Participants to Indirect Participants, and by Direct Participants and
Indirect Participants to Beneficial Owners are governed by arrangements among
them, subject to any statutory or regulatory requirements as may be in effect
from time to time.
Neither DTC nor Cede & Co. consents or votes with respect to the Debt
Securities. Under its usual procedures, DTC mails a proxy (an "Omnibus Proxy")
to the issuer as soon as possible after the record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct Participants
to whose accounts the Debt Securities are credited on the record date
(identified on a list attached to the Omnibus Proxy).
Principal and interest payments, if any, on the Debt Securities are made to
DTC. DTC's practice is to credit Direct Participants' accounts on the payment
date in accordance with their respective holdings as shown on DTC's records
unless DTC has reason to believe that it will not receive payment on the
payment date. Payments by Participants to Beneficial Owners are governed by
standing instructions and customary practices, as is the case with securities
held for the accounts of customers in bearer form or registered in "street
name" and are the responsibility of such Participant and not of DTC, the
Trustee or the Company, subject to any statutory or regulatory requirements as
may be in effect from time to time. Payment of principal and interest, if any,
to DTC is the responsibility of the Company or the Trustee, disbursement of
such payments to Direct Participants is the responsibility of DTC, and
disbursement of such payments to the Beneficial Owners is the responsibility of
Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to the Debt Securities at any time by giving reasonable notice to the
Company or the Trustee. Under such circumstances, in the event that a successor
securities depository is not appointed, Debt Security certificates are required
to be printed and delivered.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Debt Security certificates will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Company believes to be reliable, but
the Company takes no responsibility for the accuracy thereof.
Unless stated otherwise in the Prospectus Supplement, the underwriters or
agents with respect to a series of Debt Securities issued as Global Securities
will be Direct Participants in DTC.
None of the Company, any underwriter or agent, the Trustee or any applicable
paying agent will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial interests in a
Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial interest.
CONCERNING THE TRUSTEE
The Trustee has extended credit facilities to the Company and conducts other
business with the Company and certain of its affiliates, including cash
management and stock transfer services and serving as the trustee for the FMC
Employees' Thrift and Stock Purchase Plan.
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<PAGE>
DESCRIPTION OF THE WARRANTS TO PURCHASE COMMON STOCK OR PREFERRED STOCK
The following statements with respect to the Common Stock Warrants and
Preferred Stock Warrants (collectively, the "Stock Warrants") are summaries of,
and subject to, the detailed provisions of a warrant agreement ("Stock Warrant
Agreement") to be entered into by the Company and a warrant agent to be
selected at the time of issue (the "Stock Warrant Agent"), which Stock Warrant
Agreement may include or incorporate by reference standard warrant provisions
substantially in the form of the Standard Stock Warrant Provisions (the "Stock
Warrant Provisions") filed as an exhibit to the Registration Statement.
GENERAL
The Stock Warrants, evidenced by warrant certificates (the "Stock Warrant
Certificates"), may be issued under the Stock Warrant Agreement independently
or together with any Offered Securities offered by any Prospectus Supplement
and may be attached to or separate from such Offered Securities. If Stock
Warrants are offered, the related Prospectus Supplement will describe the terms
of the Stock Warrants, including without limitation the following: (1) the
offering price, if any; (2) the designation and terms of the Common or
Preferred Stock purchasable upon exercise of the Stock Warrants; (3) the number
of shares of Common or Preferred Stock purchasable upon exercise of one Stock
Warrant and the initial price at which such shares may be purchased upon
exercise; (4) the date on which the right to exercise the Stock Warrants shall
commence and the date on which such right shall expire; (5) a discussion of
certain federal income tax considerations; (6) the call provisions, if any; (7)
the currency, currencies or currency units in which the offering price, if any,
and exercise price are payable; (8) the antidilution provisions of the Stock
Warrants; and (9) any other terms of the Stock Warrants. The shares of Common
or Preferred Stock issuable upon exercise of the Stock Warrants will, when
issued in accordance with the Stock Warrant Agreement, be fully paid and
nonassessable.
EXERCISE OF STOCK WARRANTS
Stock Warrants may be exercised by surrendering to the Stock Warrant Agent
the Stock Warrant certificate signed by the warrantholder, or its duly
authorized agent, indicating the warrantholder's election to exercise all or a
portion of the Stock Warrants evidenced by the certificate. Surrendered Stock
Warrant certificates shall be accompanied by payment of the aggregate exercise
price of the Stock Warrants to be exercised, as set forth in the related
Prospectus Supplement, which payment may be made in the form of cash or a check
equal to the exercise price. Certificates evidencing duly exercised Stock
Warrants will be delivered by the Stock Warrant Agent to the transfer agent for
the Common Stock or the Preferred Stock, as the case may be. Upon receipt
thereof, the transfer agent shall deliver or cause to be delivered, to or upon
the written order of the exercising warrantholder, a certificate representing
the number of shares of Common Stock or Preferred Stock purchased. If fewer
than all of the Stock Warrants evidenced by any certificate are exercised, the
Stock Warrant Agent shall deliver to the exercising warrantholder a new Stock
Warrant certificate representing the unexercised Stock Warrants.
ANTIDILUTION PROVISIONS
The exercise price payable and the number of shares of Common or Preferred
Stock purchasable upon the exercise of each Stock Warrant will be subject to
adjustment in certain events, including the issuance of a stock dividend to
holders of Common or Preferred Stock, respectively, or a combination,
subdivision or reclassification of Common or Preferred Stock, respectively. In
lieu of adjusting the number of shares of Common or Preferred Stock purchasable
upon exercise of each Stock Warrant, the Company may elect to adjust the number
of Stock Warrants. No adjustment in the number of shares purchasable upon
exercise of the Stock Warrants will be required until cumulative adjustments
require an adjustment of at least 1% thereof. The Company may, at its option,
reduce the exercise price at any time. No fractional shares will be
21
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issued upon exercise of Stock Warrants, but the Company will pay the cash value
of any fractional shares otherwise issuable. Notwithstanding the foregoing, in
case of any consolidation, merger, or sale or conveyance of the property of the
Company as an entirety or substantially as an entirety, the holder of each
outstanding Stock Warrant shall have the right to the kind and amount of shares
of stock and other securities and property (including cash) receivable by a
holder of the number of shares of Common or Preferred Stock into which such
Stock Warrants were exercisable immediately prior thereto.
NO RIGHTS AS STOCKHOLDERS
Holders of Stock Warrants will not be entitled, by virtue of being such
holders, to vote, to consent, to receive dividends, to receive notice as
stockholders with respect to any meeting of stockholders for the election of
directors of the Company or any other matter, or to exercise any rights
whatsoever as stockholders of the Company.
DESCRIPTION OF THE WARRANTS TO PURCHASE DEBT SECURITIES
The following statements with respect to the Debt Warrants are summaries of,
and subject to, the detailed provisions of a warrant agreement (the "Debt
Warrant Agreement") to be entered into by the Company and a warrant agent to be
selected at the time of issue (the "Debt Warrant Agent"), which Debt Warrant
Agreement may include or incorporate by reference standard warrant provisions
substantially in the form of the Standard Debt Securities Warrant Provisions
(the "Debt Warrant Provisions") filed as an exhibit to the Registration
Statement.
GENERAL
The Debt Warrants, evidenced by warrant certificates (the "Debt Warrant
Certificates"), may be issued under the Debt Warrant Agreement independently or
together with any Offered Securities offered by any Prospectus Supplement and
may be attached to or separate from such Offered Securities. If Debt Warrants
are offered, the related Prospectus Supplement will describe the terms of the
warrants, including without limitation the following: (1) the offering price,
if any; (2) the designation, aggregate principal amount and terms of the Debt
Securities purchasable upon exercise of the warrants; (3) if applicable, the
designation and terms of the Debt Securities with which the Debt Warrants are
issued and the number of Debt Warrants issued with each such Debt Security; (4)
if applicable, the date on and after which the Debt Warrants and the related
Offered Securities will be separately transferable; (5) the principal amount of
Debt Securities purchasable upon exercise of one Debt Warrant and the price at
which such principal amount of Debt Securities may be purchased upon exercise;
(6) the date on which the right to exercise the Debt Warrants shall commence
and the date on which such right shall expire; (7) a discussion of certain
federal income tax considerations; (8) whether the warrants represented by the
Debt Warrant Certificates will be issued in registered or bearer form; (9) the
currency, currencies or currency units in which the offering price, if any, and
exercise price are payable; (10) the antidilution provisions of the Debt
Warrants; and (11) any other terms of the Debt Warrants.
Debt Warrant Certificates may be exchanged for new Debt Warrant Certificates
of different denominations and may (if in registered form) be presented for
registration of transfer at the corporate trust office of the Debt Warrant
Agent, which will be listed in the related Prospectus Supplement, or at such
other office as may be set forth therein. Warrantholders do not have any of the
rights of holders of Debt Securities (except to the extent that the consent of
warrantholders may be required for certain modifications of the terms of an
Indenture or form of the Debt Security, as the case may be, and the series of
Debt Securities issuable upon exercise of the Debt Warrants) and are not
entitled to payments of principal of and interest, if any, on the Debt
Securities.
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EXERCISE OF DEBT WARRANTS
Debt Warrants may be exercised by surrendering the Debt Warrant Certificate
at the corporate trust office of the Debt Warrant Agent, with the form of
election to purchase on the reverse side of the Debt Warrant Certificate
properly completed and executed, and by payment in full of the exercise price,
as set forth in the Prospectus Supplement. Upon the exercise of Debt Warrants,
the Debt Warrant Agent will, as soon as practicable, deliver the Debt
Securities in authorized denominations in accordance with the instructions of
the exercising warrantholder and at the sole cost and risk of such holder. If
less than all of the Debt Warrants evidenced by the Debt Warrant Certificate
are exercised, a new Debt Warrant Certificate will be issued for the remaining
amount of Debt Warrants.
PLAN OF DISTRIBUTION
The Company may sell Offered Securities (1) through underwriters or dealers,
(2) directly to one or more purchasers, or (3) through agents. A Prospectus
Supplement will set forth the terms of the offering of the Offered Securities
offered thereby, including the name or names of any underwriters, the purchase
price of the Offered Securities, and the proceeds to the Company from the sale,
any underwriting discounts and other items constituting underwriters'
compensation, any public offering price, any discounts or concessions allowed
or reallowed or paid to dealers, and any securities exchange or market on which
the Offered Securities may be listed. Only underwriters so named in such
Prospectus Supplement are deemed to be underwriters in connection with the
Offered Securities offered thereby.
If underwriters are used in the sale, the Offered Securities will be acquired
by the underwriters for their own account and may be resold from time to time
in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the Offered Securities will be
subject to certain conditions precedent, and the underwriters will be obligated
to purchase all the Offered Securities of the series offered by the Prospectus
Supplement if any of the Offered Securities are purchased. Any public offering
price and any discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time.
Offered Securities may also be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offering
and sale of Offered Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent will be
set forth, in the Prospectus Supplement. Unless otherwise indicated in the
related Prospectus Supplement, any such agent will be acting on a best-efforts
basis for the period of its appointment.
All Offered Securities offered other than Common Stock will be a new issue of
securities with no established trading market. Any underwriters to whom such
Offered Securities are sold by the Company for public offering and sale may
make a market in such Offered Securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of or the trading markets
for any such Offered Securities.
Agents and underwriters may be entitled under agreements entered into with
the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act that may arise from
any untrue statement or alleged untrue statement of a material fact or any
omission or alleged omission to state a material fact in this Prospectus, any
supplement or amendment hereto, or in the registration statement of which this
Prospectus forms a part, or to contribution with respect to payments which the
agents or underwriters may be required to make in respect thereof. Agents and
underwriters may engage in transactions with, or perform services for, the
Company in the ordinary course of business.
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LEGAL MATTERS
Certain legal matters with respect to the validity of the Offered Securities
will be passed upon for the Company by Winston & Strawn, Chicago, Illinois. The
Chairman of the Executive Committee of Winston & Strawn, Governor James R.
Thompson, serves as a member of the Company's Board of Directors and as of
March 1, 1995 beneficially owned 983 shares of Common Stock. Certain legal
matters with respect to the Offered Securities will be passed upon for any
underwriters or agents by Mayer, Brown & Platt, Chicago, Illinois. Mayer, Brown
& Platt from time to time acts as counsel in certain matters for the Company.
EXPERTS
The consolidated financial statements of the Company and its consolidated
subsidiaries as of December 31, 1993 and 1994 and for the years ended December
31, 1992, 1993 and 1994 incorporated by reference herein and elsewhere in the
Registration Statement have been audited by KPMG Peat Marwick LLP ("KPMG"),
independent certified public accountants, as set forth in their report thereon
incorporated by reference herein which, as to 1994, is based in part on the
report of Ernst & Young LLP ("Ernst & Young"), independent auditors, that also
is incorporated by reference herein. The financial statements referred to above
are incorporated by reference in reliance upon such reports given upon the
authority of such firms as experts in accounting and auditing. To the extent
that KPMG audits and reports on consolidated financial statements of the
Company and consolidated subsidiaries issued at future dates, and consents to
the use of their reports thereon, such consolidated financial statements also
will be incorporated by reference in the Registration Statement in reliance
upon their reports given upon the authority of such firm as experts in
accounting and auditing. To the extent that Ernst & Young audits and reports on
financial statements of United Defense, L.P., a subsidiary of the Company
issued at future dates, and consents to the use of their reports thereon, such
reports also will be incorporated by reference in the Registration Statement in
reliance upon such reports given upon the authority of such firm as experts in
accounting and auditing.
With respect to the unaudited interim financial information of the Company
and its consolidated subsidiaries for the periods ended March 31, 1995 and 1994
and June 30, 1995 and 1994, incorporated by reference herein, KPMG has reported
that they applied limited procedures in accordance with professional standards
for a review of such information. The reports of KPMG for such periods state
that such reports are based on the reports of other accountants with respect to
interim financial information of United Defense, L.P. With respect to the
unaudited interim financial information of United Defense, L.P., for the
periods ended March 31, 1995 and 1994 and June 30, 1995 and 1994, Ernst & Young
has reported that they applied limited procedures in accordance with
professional standards for a review of such information. However, the separate
reports of KPMG and Ernst & Young included in the Company's Quarterly reports
on Form 10-Q for the quarters ended March 31, 1995 and June 30, 1995, and
incorporated by reference herein, state that they did not audit and they do not
express an opinion on that interim financial information. Accordingly, the
degree of reliance on their reports on such information should be restricted in
light of the limited nature of the review procedures applied. Neither KPMG nor
Ernst & Young is subject to the liability provisions of Section 11 of the
Securities Act for their reports on the unaudited interim financial information
because neither report is a "report" or a "part" of the Registration Statement
prepared or certified by the accountants within the meaning of Sections 7 and
11 of the Securities Act.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
All dollar amounts in the following table are estimates except the amount of
the registration fee under the Securities Act of 1933:
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee................... $172,414
Blue sky fees and expenses...................................... 15,000
Accounting fees and expenses.................................... 35,000
Legal fees and expenses......................................... 75,000
Printing and engraving.......................................... 75,000
Rating Agency fees.............................................. 150,000
Trustee's fees and expenses..................................... 10,000
Miscellaneous................................................... 67,586
--------
Total....................................................... $600,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Registrant is a Delaware corporation. Reference is made to Section 145 of the
Delaware General Corporation Law, as amended (the "GCL"), which provides 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 or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of such corporation), by reason of the fact that such person
is or was a director, officer, employee or agent of the corporation, or is or
was serving at its request in such capacity of another corporation or business
organization against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed
to the best interest of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that such person's
conduct was unlawful. A Delaware corporation may indemnify officers and
directors in an action by or in the right of a corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses that such officer or director actually and
reasonably incurred.
Article XI of the By-laws of the Company provides that the Company shall
indemnify its directors and officers to the full extent permitted by Section
145 of the GCL.
Under the terms of the Equity Underwriting Agreement and the Debt
Underwriting Agreement filed as exhibits hereto, directors, certain officers
and controlling persons of the Company are entitled to indemnification under
certain circumstances including proceedings under the Securities Act of 1933
and the Securities Exchange Act of 1934.
ITEM 16. EXHIBITS
A list of exhibits included as part of this Registration Statement is set
forth in the Exhibit Index which immediately precedes such exhibits and is
incorporated herein by reference.
II-1
<PAGE>
ITEM 17. UNDERTAKINGS
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1993.
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that the undertakings set forth in paragraphs (1)(i) and
(1)(ii) do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Company pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
The Company hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the provisions described in Item 15 or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. If a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of
the Company 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 Company, will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-2
<PAGE>
The Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
Prospectus filed by the Company pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of Prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT CERTIFIES
THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS
FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE
SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN CHICAGO,
ILLINOIS ON NOVEMBER 1, 1995.
FMC Corporation
/s/ Michael J. Callahan
By: ________________________________
Michael J. Callahan
Executive Vice President and
Principal Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES AND
ON THE DATES INDICATED:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Robert N. Burt Chairman of the Board and November 1, 1995
____________________________________ Chief Executive Officer
Robert N. Burt (Principal Executive
Officer)
/s/ Michael J. Callahan Executive Vice President November 1, 1995
____________________________________ (Principal Financial
Michael J. Callahan Officer)
/s/ Ronald D. Mambu Vice President and November 1, 1995
____________________________________ Controller (Principal
Ronald D. Mambu Accounting Officer)
/s/ William W. Boeschenstein* Director November 1, 1995
____________________________________
William W. Boeschenstein
/s/ Larry D. Brady* Director November 1, 1995
____________________________________
Larry D. Brady
/s/ B.A. Bridgewater, Jr.* Director November 1, 1995
____________________________________
B.A. Bridgewater, Jr.
Director
____________________________________
Patricia A. Buffler
/s/ Albert J. Costello* Director November 1, 1995
____________________________________
Albert J. Costello
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Paul L. Davies, Jr.* Director November 1, 1995
____________________________________
Paul L. Davies, Jr.
/s/ Jean A. Francois-Poncet* Director November 1, 1995
____________________________________
Jean A. Francois-Poncet
Director
____________________________________
Pehr G. Gyllenhammar
/s/ Robert H. Malott* Director November 1, 1995
____________________________________
Robert H. Malott
/s/ Edward C. Meyer* Director November 1, 1995
____________________________________
Edward C. Meyer
/s/ William F. Reilly* Director November 1, 1995
____________________________________
William F. Reilly
/s/ James R. Thompson* Director November 1, 1995
____________________________________
James R. Thompson
/s/ Clayton Yeutter* Director November 1, 1995
____________________________________
Clayton Yeutter
</TABLE>
/s/ Robert L. Day
*By ___________________________
Robert L. Day
(Attorney-in-fact)
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT NO. EXHIBIT PAGE
----------- ------- ------------
<C> <S> <C>
1.1 Equity Underwriting Agreement.*
1.2 Debt Underwriting Agreement.*
4.1 Restated Certificate of Incorporation of the
Company as filed on July 1, 1986 (incorporated by
reference from Exhibit 3.1 to the Company's Form SE
filed on March 25, 1993, File No. 1-2376, EDGAR
filing).
4.2 Amendment to Restated Certificate of Incorporation
filed on April 30, 1987 (incorporated by reference
from Exhibit 3.2 to the Company's Form SE filed on
March 25, 1993, File No. 1-2376, EDGAR filing).
4.3 Amended and Restated By-Laws of the Company, as
amended (incorporated by reference from Exhibit 3.1
to the Company's Form SE filed on March 28, 1990,
File No. 1-2376, EDGAR filing).
4.4 Amended and Restated Rights Agreement, dated as of
February 19, 1988, between Registrant and Harris
Trust and Savings Bank (incorporated by reference
from Exhibit 4 to the Company's Form SE filed on
March 25, 1993, File No. 1-2376, EDGAR filing).
4.5 Form of Senior Indenture by and among the Company
and Harris Trust and Savings Bank, as Trustee.*
4.6 Form of Subordinated Indenture by and among the
Company and Harris Trust and Savings Bank, as
Trustee.*
4.7 Form of Standard Stock Warrant Provisions.*
4.8 Form of Standard Debt Warrant Provisions.*
5.1 Opinion of Winston & Strawn.*
12.1 Statement regarding computation of ratios of
earnings to fixed charges.*
15.1 Letter from KPMG Peat Marwick LLP re: Unaudited
Interim Financial Information.
15.2 Letter from Ernst & Young LLP re: Unaudited Interim
Financial Information.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Winston & Strawn (included in its
opinion filed as Exhibit 5.1).
24.1 Powers of Attorney.*
25.1 Statement of Eligibility of Trustee on Form T-1 for
Harris Trust and Savings Bank.*
</TABLE>
- --------
*Previously filed
II-6
<PAGE>
Exhibit 15.1
FMC Corporation
Chicago, Illinois
Ladies and Gentlemen:
RE: REGISTRATION STATEMENT ON FORM S-3
With respect to the registration statement on Form S-3 to be filed by FMC
Corporation on November 1, 1995, we acknowledge our awareness of the use
therein of our reports dated April 20, 1995 and July 27, 1995 related to our
reviews of interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such reports are not
considered part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the meaning
of sections 7 and 11 of the Act.
Very truly yours,
/s/ KPMG PEAT MARWICK LLP
Chicago, Illinois
October 31, 1995
<PAGE>
Exhibit 15.2
October 31, 1995
Partners
United Defense, L.P.
We are aware of the incorporation by reference in the Registration Statement on
Form S-3 of FMC Corporation to be filed with the Securities and Exchange
Commission on or about November 1, 1995 of our reports dated April 13, 1995 and
July 20, 1995 relating to the unaudited interim financial statements of United
Defense, L.P. which are included in FMC Corporation's Forms 10-Q for the
quarters ended March 31, 1995 and June 30, 1995.
Pursuant to Rule 436(c) of the Securities Act of 1933, our reports are not a
part of the registration statement prepared or certified by accountants within
the meaning of Section 7 or 11 of the Securities Act of 1933.
/s/ ERNST & YOUNG LLP
--------------------------
ERNST & YOUNG LLP
Washington, D.C.
<PAGE>
Exhibit 23.1
FMC Corporation
Chicago, Illinois
We consent to the use of our audit report dated January 23, 1995 on the
consolidated financial statements of FMC Corporation and consolidated
subsidiaries as of December 31, 1994 and 1993 and for each of the years in the
three-year period then ended incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG PEAT MARWICK LLP
Chicago, Illinois
October 31, 1995
<PAGE>
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and related Prospectus of FMC Corporation to
be filed with the Securities and Exchange Commission on or about November 1,
1995 and to the incorporation by reference therein of our report dated
January 23, 1995, with respect to the financial statements of United Defense,
L.P. included in FMC Corporation's Annual Report (Form 10-K) for the year ended
December 31, 1994, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
--------------------------
ERNST & YOUNG LLP
Washington, D.C.
October 31, 1995
