<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 21, 1998
REGISTRATION NO. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FMC CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-0479804
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
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)
---------------
J. PAUL MCGRATH
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE SECRETARY
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)
COPIES TO:
STEVEN J. GAVIN 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 TO THE 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. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED(1) REGISTERED PER UNIT PRICE(2) FEE
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<S> <C> <C> <C> <C>
Common Stock, $.10 par value per share(3)..
Preferred Stock, without par value.........
Depositary Shares Representing Preferred
Stock, without par value.................. (4) (4) $500,000,000(5) $100,300(5)
Debt Securities............................
Warrants to Purchase Common Stock..........
Warrants to Purchase Preferred Stock.......
Warrants to Purchase Debt Securities.......
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</TABLE>
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<PAGE>
(1) In no event will the maximum aggregate offering price of all securities
offered (including any Debt Securities issued with an original discount)
pursuant to this Registration Statement (the "Offered Securities") exceed
$500,000,000. The Offered Securities may be sold separately, together or
as units with other Offered Securities registered hereunder. The Offered
Securities registered hereunder also include such indeterminate number of
shares of Common Stock and Preferred Stock as may be issued upon
conversion of Debt Securities or Preferred Stock registered hereby.
(2) Estimated in accordance with Rule 457(o) under the Securities Act of 1933,
as amended, solely for the purpose of computing the registration fee.
(3) The Common Stock registered hereby includes Preferred Stock Purchase
Rights (the "Rights"). The Rights are associated with and trade with the
Common Stock. The value, if any, attributable to the Rights is reflected
in the market price of the Common Stock.
(4) Not applicable pursuant to General Instruction II.D of Form S-3 under the
Securities Act of 1933, as amended.
(5) Of the $500,000,000 of Offered Securities registered hereby, $160,000,000
of such securities were registered pursuant to Registration No. 33-62415
and are unissued as of the date hereof. A registration fee of $55,172.41
was previously paid with respect to such securities.
----------------
Pursuant to Rule 429 under the Securities Act, the Prospectus filed as part
of this Registration Statement relates to the securities registered hereby,
including the remaining unsold $160,000,000 of securities previously
registered by the Registrant under its Registration Statement on Form S-3
(Registration No. 33-62415).
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE
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 JULY 21, 1998
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 the Offered Securities covered by that Prospectus Supplement.
The Common Stock is listed on the New York Stock Exchange, the Pacific Stock
Exchange and the Chicago Stock Exchange under the symbol "FMC". Any Common
Stock sold pursuant to a Prospectus Supplement will be listed on such
exchanges, subject to official notice of issuance. The Company has not yet
determined whether any other Offered Securities offered hereby will be listed
on any exchange or over-the-counter market. If the Company decides to seek
listing of any other Offered Securities, the Prospectus Supplement relating
thereto will disclose such exchange or market.
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.
-----------
, 1998
<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.
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 may be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and 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 Commission also maintains a web site
(http://www.sec.gov) that contains reports, proxy statements and other
information regarding registrants that file electronically with the
Commission.
The Company has filed with the Commission 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.
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, 1997;
(ii) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998;
(iii) the Company's Current Reports on Form 8-K dated April 15, 1998,
April 17, 1998 and April 24, 1998;
(iv) the description of the Company's Preferred Stock Purchase Rights
contained in the Company's Registration Statement on Form 8-A filed on
March 6, 1986 pursuant to Section 12 of the Exchange Act and all amendments
thereto and reports filed for the purposes of updating such description;
and
2
<PAGE>
(v) the description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed on May 12, 1986 pursuant to
Section 12 of the Exchange Act and all amendments thereto and reports filed
for the purposes of updating such description.
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 J. Paul McGrath, Senior Vice
President, General Counsel and Corporate Secretary, FMC Corporation, 200 East
Randolph Drive, Chicago, Illinois 60601 (telephone: (312) 861-6000).
FORWARD-LOOKING STATEMENTS
This Prospectus contains, any Prospectus Supplement will contain and the
documents incorporated by reference herein contain or will contain certain
statements which describe the Company's beliefs concerning future business
conditions and the outlook for the Company based on currently available
information. Wherever possible, the Company has identified these "forward-
looking statements" (as defined in Section 27A of the Securities Act and
Section 21E of the Exchange Act) by words such as "anticipates," "believes,"
"estimates," "expects" and similar expressions. These forward-looking
statements are subject to risks and uncertainties which could cause the
Company's actual results, performance or achievements to differ materially
from those expressed in, or implied by, these statements. These risks and
uncertainties include, but are not limited to, the following: risks associated
with significant price competition, higher ingredient and raw material prices
or shortages of such commodities, risks associated with new product
introductions (including the potential for unanticipated delays or cost
overruns in connection with introductions of new products and the development
of new manufacturing processes), freight transportation delays beyond the
control of the Company, inability of the Company or its suppliers to remedy
potential information systems problems related to the year 2000, risks
associated with joint ventures, partnerships or limited endeavors, future
environmental liabilities not covered by insurance or indemnity, risks
relating to general economic conditions and unforeseen outcomes of litigation
or other contingencies. The Company assumes no obligation to update publicly
any forward-looking statements, whether as a result of new information, future
events or otherwise.
THE COMPANY
The Company is one of the world's leading producers of chemicals and
machinery for industry and agriculture. The Company employs over 16,000 people
at over 100 manufacturing facilities and mines in 25 countries. The Company
divides its businesses into three main segments: Machinery and Equipment,
Industrial Chemicals and Performance Chemicals. Machinery and Equipment
businesses provide specialized machinery to the food, petroleum,
transportation and material handling industries. Industrial Chemicals
businesses manufacture a wide variety of chemicals including soda ash,
phosphates and hydrogen peroxide. Major customers include detergent, glass and
paper producers, as well as other chemical companies. Performance Chemicals
develops, manufactures and markets proprietary specialty chemicals for the
agricultural, food and pharmaceutical industries.
3
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The Company was incorporated in 1928 under Delaware law and has its
principal executive offices at 200 East Randolph Drive, Chicago, Illinois
60601 (telephone number: (312) 861-6000). As used herein, "FMC" or the
"Company" refers to FMC Corporation and its subsidiaries, unless otherwise
indicated by the context.
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 unaudited historical ratio of earnings to
fixed charges of the Company for the periods indicated.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
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1998 1997 1997(1) 1996 1995(2) 1994 1993(3)
---- ---- ------- ---- ------- ---- -------
<S> <C> <C> <C> <C> <C> <C>
2.1x 1.8x 0.6x 2.7x 2.4x 2.9x 0.2x
</TABLE>
- --------
(1) Earnings did not cover fixed charges by $52.4 million for the year ended
December 31, 1997. The ratio of earnings to fixed charges for the year
ended December 31, 1997 before asset impairments and restructuring and
other charges was 2.5x.
(2) The ratio of earnings to fixed charges for the year ended December 31,
1995 before the gain on the sale of FMC Wyoming stock, asset impairments,
restructuring and other charges and write-off of acquired in-process
research and development costs was 2.9x.
(3) Earnings did not cover fixed charges by $72.3 million for the year ended
December 31, 1993. The ratio of earnings to fixed charges for the year
ended December 31, 1993 before asset impairments and restructuring and
other charges was 1.6x.
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 130,000,000
shares of Common Stock. As of March 31, 1998, there were 34,674,094 shares of
Common Stock issued and outstanding. In addition, up to 5,025,918 shares have
been reserved as of March 31, 1998 for issuance upon the exercise of options
and awards under the Company's incentive compensation plans. The shares of
Common Stock are listed on the New York Stock Exchange, the Pacific Stock
Exchange and the Chicago 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
4
<PAGE>
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 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 in 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 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 of a share of
5
<PAGE>
Junior Participating Preferred Stock, Series A, without par value, of the
Company at a price of $300 per one one-hundredth 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.
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 March
31, 1998, the Board of Directors had designated 400,000 shares of the
Preferred Stock as Junior Participating Preferred Stock, Series A 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 the date of this Prospectus, 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.
6
<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 of 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.
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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
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.
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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 Senior Indenture and the form of Subordinated Indenture 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 the 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.
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.
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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)
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.
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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' 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
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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 (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 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)
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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 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 Indenture 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
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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 applicable 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 canceled 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)
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
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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 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 marshaling 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
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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.
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.
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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 receive 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.
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.
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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.
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.
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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 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
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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.
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.
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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.
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, 1998 beneficially owned 4,030 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 for the Company on certain
matters.
EXPERTS
The consolidated financial statements of FMC Corporation and consolidated
subsidiaries as of December 31, 1997 and 1996, and for each of the years in
the three-year period ended December 31, 1997, have been incorporated by
reference herein and in the Registration Statement in reliance upon the report
of KPMG Peat Marwick LLP ("KPMG"), independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing.
With respect to the unaudited interim financial information for the three-
month periods ended March 31, 1998 and 1997, incorporated by reference herein,
KPMG has reported that they applied limited procedures in accordance with
professional standards for a review of such information. However, their
separate report included in the Company's quarterly report on Form 10-Q for
the quarter ended March 31, 1998, and incorporated by reference herein, states
that they did not audit and they do not express an opinion on that interim
financial information. Accordingly, the degree of reliance on their report on
such information should be restricted in light of the limited nature of the
review procedures applied. The accountants are not subject to the liability
provisions of Section 11 of the Securities Act for their report on the
unaudited interim financial information because that report is not 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.
22
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses payable by the
Company, except any underwriters' fees and expenses, in connection with the
sale of the Offered Securities being registered hereby. All of the amounts
shown are estimated, except the Securities and Exchange Commission
registration fee.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............. $100,300
Blue sky fees and expenses...................................... 5,000
Accounting fees and expenses.................................... 50,000
Legal fees and expenses......................................... 100,000
Printing expenses............................................... 100,000
Rating agency fees.............................................. 150,000
Trustee's fees and expenses..................................... 10,000
Miscellaneous................................................... 84,700
--------
Total....................................................... $600,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company 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 Company's Restated By-laws provides that the Company shall
indemnify its directors and officers to the full extent permitted by Section
145 of the GCL.
The Company's Restated Certificate of Incorporation provides that the
Company's directors will not be personally liable to the Company or its
stockholders for monetary damages resulting from breaches of their fiduciary
duty as directors, except (a) for any breach of the directors' duty of loyalty
to the Company or its stockholders, (b) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(c) for unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the GCL or (d) for transactions from
which directors derive improper personal benefit.
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.
II-1
<PAGE>
The Company maintains directors' and officers' liability insurance coverage.
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.
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 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(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.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Company's annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the provisions described in Item 15
(other than the provisions relating to insurance), 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 and is, therefore, unenforceable. In the event that 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 and will be governed by the final
adjudication of such issue.
II-2
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, FMC CORPORATION
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF CHICAGO, STATE OF ILLINOIS, ON JULY 21, 1998.
FMC Corporation
/s/ Michael J. Callahan
By: _________________________________
Name: Michael J. Callahan
Title: Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
EACH PERSON WHOSE SIGNATURE APPEARS BELOW HEREBY CONSTITUTES AND APPOINTS J.
PAUL MCGRATH, MICHAEL J. CALLAHAN AND ROBERT N. BURT, AND EACH OR ANY OF THEM,
AS HIS OR HER TRUE AND LAWFUL ATTORNEY-IN-FACT AND AGENT, WITH FULL POWER OF
SUBSTITUTION, FOR HIM OR HER AND IN HIS OR HER NAME, PLACE AND STEAD, IN ANY
AND ALL CAPACITIES, TO SIGN ANY OR ALL AMENDMENTS OR POST-EFFECTIVE AMENDMENTS
TO THIS REGISTRATION STATEMENT AND TO FILE THE SAME, WITH ALL EXHIBITS
THERETO, AND OTHER DOCUMENTS IN CONNECTION THEREWITH WITH THE SECURITIES AND
EXCHANGE COMMISSION, GRANTING UNTO SAID ATTORNEYS-IN-FACT AND AGENTS AND EACH
OF THEM FULL POWER AND AUTHORITY TO DO AND PERFORM EACH AND EVERY ACT AND
THING REQUISITE AND NECESSARY TO BE DONE, AS FULLY TO ALL INTENTS AND PURPOSES
AS HE OR SHE MIGHT OR COULD DO IN PERSON, HEREBY RATIFYING AND CONFIRMING ALL
THAT EACH SUCH ATTORNEY-IN-FACT AND AGENT, OR HIS SUBSTITUTE MAY LAWFULLY DO
OR CAUSE TO BE DONE BY VIRTUE THEREOF.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON THE DATES INDICATED:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Robert N. Burt Chairman of the Board, Chief July 21, 1998
____________________________________ Executive Officer and
Robert N. Burt Director
(Principal Executive
Officer)
/s/ Larry D. Brady President and Director July 21, 1998
____________________________________
Larry D. Brady
/s/ Michael J. Callahan Executive Vice President and July 21, 1998
____________________________________ Chief Financial Officer
Michael J. Callahan (Principal Financial
Officer)
/s/ Ronald D. Mambu Vice President and July 21, 1998
____________________________________ Controller (Principal
Ronald D. Mambu Accounting Officer)
/s/ B.A. Bridgewater, Jr. Director July 21, 1998
____________________________________
B.A. Bridgewater, Jr.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Patricia A. Buffler Director July 21, 1998
____________________________________
Patricia A. Buffler
/s/ Albert J. Costello Director July 21, 1998
____________________________________
Albert J. Costello
/s/ Paul L. Davies, Jr. Director June 29, 1998
____________________________________
Paul L. Davies, Jr.
/s/ Jean A. Francois-Poncet Director July 21, 1998
____________________________________
Jean A. Francois-Poncet
/s/ Edward C. Meyer Director July 21, 1998
____________________________________
Edward C. Meyer
/s/ Edward J. Mooney Director July 21, 1998
____________________________________
Edward J. Mooney
/s/ William F. Reilly Director June 29, 1998
____________________________________
William F. Reilly
/s/ James R. Thompson Director July 21, 1998
____________________________________
James R. Thompson
/s/ Clayton Yeutter Director July 21, 1998
____________________________________
Clayton Yeutter
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1.1 Form of Equity Underwriting Agreement, as filed with the Securities
and Exchange Commission on September 7, 1995 as Exhibit 1.1 to the
Company's Registration Statement on Form S-3 (Registration No. 33-
62415) and incorporated herein by reference.
1.2 Form of Debt Underwriting Agreement, as filed with the Securities and
Exchange Commission on September 7, 1995 as Exhibit 1.2 to the
Company's Registration Statement on Form S-3 (Registration No. 33-
62415) and incorporated herein by reference.
4.1 Restated Certificate of Incorporation of the Company.
4.2 Restated By-Laws of the Company, amended as of February 20, 1998, as
filed with the Securities and Exchange Commission on March 18, 1998 as
Exhibit 3.3 to the Company's Form 10-K for the fiscal year ended
December 31, 1997 (File No. 1-02376) and incorporated herein by
reference.
4.3 Amended and Restated Rights Agreement dated as of February 19, 1988
between the Company and Harris Trust and Savings Bank, as filed with
the Securities and Exchange Commission on March 25, 1993 as Exhibit 4
to the Company's Form SE (File No. 1-02376) and incorporated herein by
reference.
4.4 Amendment to Amended and Restated Rights Agreement dated February 9,
1996, as filed with the Securities and Exchange Commission on February
12, 1996 as Exhibit 1 to the Company's Form 8-K (File No. 1-02376) and
incorporated herein by reference.
4.5 Indenture dated as of July 1, 1996 between the Company and Harris
Trust and Savings Bank, as Trustee, as filed with the Securities and
Exchange Commission on January 27, 1997 as Exhibit 4-a to the
Company's Form 8-K (File No. 1-02376) and incorporated herein by
reference.
4.6 Form of Subordinated Indenture between the Company and Harris Trust
and Savings Bank, as Trustee, as filed with the Securities and
Exchange Commission on September 7, 1995 as Exhibit 4.6 to the
Company's Registration Statement on Form S-3 (Registration No. 33-
62415) and incorporated herein by reference.
4.7 Form of Standard Stock Warrant Provisions, as filed with the
Securities and Exchange Commission on September 7, 1995 as Exhibit 4.7
to the Company's Registration Statement on Form S-3 (Registration No.
33-62415) and incorporated herein by reference.
4.8 Form of Standard Debt Warrant Provisions, as filed with the Securities
and Exchange Commission on September 7, 1995 as Exhibit 4.8 to the
Company's Registration Statement on Form S-3 (Registration No. 33-
62415) and incorporated herein by reference.
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 regarding Unaudited Interim
Financial Information.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Winston & Strawn (included in its opinion filed as Exhibit
5.1).
24.1 Powers of Attorney (included on signature page included in Part II of
this filing).
25.1 Statement of Eligibility of Trustee on Form T-1 for Harris Trust and
Savings Bank.
</TABLE>
<PAGE>
Exhibit 4.1
RESTATED CERTIFICATE OF INCORPORATION OF
FMC CORPORATION
FMC CORPORATION, a corporation organized and existing under the laws of the
State of Delaware, (the "Corporation") DOES HEREBY CERTIFY AS FOLLOWS:
1. The name of the Corporation is FMC CORPORATION. The name under which
the Corporation was originally incorporated is JOHN BEAN MFG. CO. The
date of filing of the Corporation's original Certificate of
Incorporation with the Secretary of State of the State of Delaware was
August 10, 1928.
2. The text of the Restated Certificate of Incorporation of the
Corporation as heretofore amended or supplemented is hereby restated,
without further amendment or changes, to read in full as follows:
FIRST: The name of the Corporation is FMC CORPORATION.
SECOND: The registered office of the Corporation in the State of Delaware is
located at 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name and address of its registered agent is The Corporation Trust Company,
1209 Orange Street, Wilmington, Delaware 19801.
THIRD: The nature of the business, or objects or purposes to be transacted,
promoted or carried on by the Corporation, are as follows:
(a) To manufacture, design, buy, sell, lease or otherwise deal in
machinery, tractors, pumps, agricultural implements, equipment, appliances and
apparatus of every description and for any use or purpose whatsoever.
(b) To manufacture, produce, buy, sell and deal in chemicals of every
description, organic and inorganic, natural or synthetic, in the form of raw
materials, intermediates, or finished products (including films and fibers) and
any other related products whatsoever and by-products derived from the
manufacture thereof and products to be made therefrom and to do all things
incident thereto. To produce, manufacture, store, transport, buy, sell, exchange
and generally deal in chemicals and chemical products, minerals and mineral
products of every nature and description.
(c) To engage in, conduct and carry on the business of manufacturing,
buying, selling, erecting and dealing in materials handling, processing,
construction and mechanical power transmission machinery, electronic, mechanical
and industrial equipment, and the parts therefor and components thereof.
1
<PAGE>
(d) To lay down, construct, manufacture, own and operate tanks, cars,
pipes, pipe lines, tubes, pump stations, connections, fixtures,
storage houses, laboratory, and such machinery, apparatus, devices and
arrangements as may be necessary to operate the same. To own, hold,
use and occupy such lands, rights of way, easements, franchises,
buildings and structures as may be necessary to the purposes of the
Corporation.
(e) To manufacture, buy, contract for, lease and in any and all other ways
acquire, take, hold, own and to deal in, sell, transfer, mortgage,
pledge, hypothecate or convey in trust, lease or otherwise dispose of,
goods, wares and merchandise of every name, nature and description
whatsoever.
(f) To apply for, obtain, register, purchase, license or otherwise
acquire, and to hold, own, use, operate, sell, assign, license or
otherwise dispose of, trademarks, trade names, copyrights, patents,
inventions, improvements, processes and formulae of any nature
whatsoever, and letters patent of the United States or elsewhere.
(g) To buy, contract for, and in any and all other ways acquire, take,
hold, own and deal in, sell, transfer, mortgage, pledge, hypothecate
or convey in trust, or otherwise dispose of, the stock and bonds of
this and other corporations, domestic or foreign.
(h) To enter upon, purchase, lease or otherwise acquire, hold, develop,
improve, lease or otherwise use, mortgage or otherwise encumber and
sell, convey, transfer, exchange or otherwise dispose of real
property, either improved or unimproved, and leases, leaseholds,
easements, rights of way, franchises and other rights and interests
therein of every kind and description, and to engage in mining.
(i) To act as agent or broker for any other person, firm or corporation.
(j) To loan money, without security therefor, to any person, firm or
corporation; to borrow money for any of the objects or purposes of the
Corporation without limit as to amount, and from time to time to issue
evidences of indebtedness, secured or unsecured, of the Corporation,
for moneys so borrowed, or in payment for property acquired, or for
any other of the objects or purposes of the Corporation or in
connection with its business; and to secure such evidences of
indebtedness by mortgage, pledge, deed of trust or other lien upon, or
assignment of or agreement in respect of, any or all the property,
assets, rights, licenses, privileges or franchises of the Corporation
acquired or to be acquired, and to pledge, sell or otherwise dispose
of any or all such evidences of indebtedness of the Corporation for
its corporate purposes.
(k) To promote, or to aid in any manner financially or otherwise, any
corporation or association of which any stocks, bonds, or other
evidences of indebtedness or
2
<PAGE>
securities are held directly or indirectly by the Corporation; and for
this purpose to guarantee the contracts, dividends, stocks, bonds,
notes and other obligations of such other corporations or
associations; and to do any other acts or things designed to protect,
preserve, improve or enhance the value of such stocks, bonds or other
evidences of indebtedness or securities.
(l) To carry on any other lawful business whatsoever, including the
providing of services, which may seem to the Corporation capable of
being carried on in connection with the above, or calculated directly
or indirectly to promote the interest of the Corporation or to enhance
the value of its properties; and to have, enjoy and exercise all the
rights, powers and privileges which are now or which may hereafter be
conferred upon corporations organized under the General Corporation
Law of the State of Delaware.
(m) To conduct its business (including the holding, purchasing, mortgaging
and conveying of real and personal property) in the State of Delaware,
other states, the District of Columbia, the territories, colonies and
possessions of the United States and in foreign countries; and to
maintain such offices either within or without the State of Delaware
as may be convenient; provided, however, that nothing herein contained
shall be deemed to authorize the Corporation to construct, hold,
maintain or operate within the State of Delaware railroads, railways,
telegraph or telephone lines, or to carry on within said State any
public utility business.
(n) To have one or more offices, to carry on any or all of its operations
and business, and, without restriction or limit as to amount, to
purchase, lease or otherwise acquire, hold and own, and to mortgage,
sell, convey, lease or otherwise dispose of, real and personal
property of every class and description, in any of the states or
territories of the United States and in the District of Columbia, and
in any and all foreign countries, subject to the laws of such state,
district, territory or country.
(o) To do any and all things herein set forth and in addition such other
acts and things as are necessary or convenient to the attainment of
the purposes of the Corporation, or any of them, to the same extent as
natural persons lawfully might or could do in any part of the world,
in so far as such acts are permitted to be done by a corporation
organized under the General Corporation Law of the State of Delaware.
(p) To enter into a partnership or joint venture with any person,
association, firm or corporation.
The foregoing clauses shall be construed both as objects and powers, and it is
hereby expressly provided that the foregoing enumeration of specific powers
shall not be held to limit or restrict in any manner the powers of the
Corporation, and are in furtherance of, and in addition to, and not in
limitation of the general powers conferred by the laws of the State of Delaware.
3
<PAGE>
FOURTH: (a) The total number of shares of stock which the Corporation shall have
authority to issue is 135,000,000 shares, consisting of 130,000,000 shares of
Common Stock, par value $.10 per share, and 5,000,000 shares of Preferred Stock,
without par value.
(b) The shares of Preferred Stock shall be issued in series, as may be
determined from time to time by the Board of Directors, each such series to be
appropriately designated by a distinguishing number, letter of title prior to
the issue of any shares thereof, and there is hereby expressly granted to the
Board of Directors of the Corporation authority to fix the voting power, the
designations, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions of each such series
of Preferred Stock in the resolution or resolutions adopted by the Board of
Directors providing for the issue of such Preferred Stock. Whenever the term
Preferred Stock is used in this Article FOURTH, it shall be deemed to mean and
include all series of the Preferred Stock, unless the context shall otherwise
require.
(c) The description of the Common Stock and of its designations, powers,
preferences and rights, and of its qualifications, limitations, or restrictions
are as follows:
1. Out of the assets of the corporation, which are by law available for
the payment of dividends remaining after full cumulative dividends upon
any Preferred Stock then outstanding and entitled thereto shall have
been declared and paid or set apart for payment for all past dividend
periods, and after full dividends on any Preferred Stock for the
current dividend period shall have been declared and paid or set apart
for payment, and after making such provisions, if any, as the Board of
Directors may deem advisable for working capital or for any reserve or
reserves, including reserves for payment of future dividends upon any
Preferred Stock, then, and not otherwise, dividends may be declared and
paid upon the Common Stock to the exclusion of the holders of Preferred
Stock.
2. The holders of the Common Stock shall vote share for share, together
with the holders of any series of the Preferred Stock entitled to have
voting rights, as one class for the election of directors and for all
other purposes, except as may be provided by the Board of Directors
with any series of the Preferred Stock.
(d) The shares of all classes of stock of the corporation may be issued by the
corporation from time to time for such consideration as from time to time may be
fixed by the Board of Directors of the corporation, provided that shares of
stock having a par value shall not be issued for a consideration less than such
par value. No holders of stock of the corporation of any class, as such, shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the corporation whether now or hereafter authorized, or to any
obligations convertible into stock of the corporation, or any right of
subscription to any thereof other than such, if any, as the Board of Directors
in its discretion may, from time to time, determine with respect thereto; and
any shares of stock or convertible obligations which the Board of Directors may
determine to offer for subscription to the holders of stock of the corporation
may, as said Board shall determine, be offered to the holders of any class or
4
<PAGE>
classes of stock exclusively, or to the holders of all classes of stock, and, if
offered to more than one class of stock, in such proportion as between said
classes of stock as the Board of Directors in its discretion may determine. As
used herein, the expression "convertible obligations" shall include any notes,
bonds or other evidences of indebtedness to which are attached or with which are
issued warrants or other rights to purchase stock of the corporation of any
class or classes. The Board of Directors is hereby expressly authorized, in its
discretion, in connection with the issue of any obligations or stock of the
corporation (but without intending hereby to limit its general power so to do in
other cases), to grant rights or options to purchase stock of the corporation of
any class upon such terms and during such period as the Board of Directors shall
determine, and to cause such rights to be evidenced by such warrants or other
instruments as it may deem advisable.
At any time, or from time to time, the corporation may grant rights or options
to purchase from the corporation any shares of its stock of any class or classes
to run for such period of time, for such consideration, upon such terms and
conditions, and in such form as the Board of Directors may determine.
The Board of Directors shall have authority, as provided by law, to determine
that only a part of the consideration, which shall be received by the
corporation for the shares of its stock which it shall issue from time to time,
shall be capital, provided, however, that, if all the shares issued shall be
shares having a par value, the amount of the part of such consideration so
determined to be capital shall be equal to the aggregate par value of such
shares. The excess, if any, at any time, of the total net assets of the
corporation over the amount so determined to be capital, as aforesaid, shall be
surplus.
All classes of stock of the corporation shall be and remain at all times
nonassessable.
FIFTH: The minimum amount of capital with which the Corporation shall commence
business is $1,000.
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The private property of the stockholders shall not be subject to the
payment of corporate debts to any extent whatsoever.
EIGHTH: The following additional provisions are inserted for the management of
the business and for the conduct of the affairs of the Corporation and its
directors and stockholders:
(a) A director of the Corporation shall not in the absence of fraud be
disqualified by his office from dealing or contracting with the
Corporation either as a vendor, purchaser or otherwise, nor in the
absence of fraud shall any transaction or contract of the Corporation
be void or voidable or affected by reason of the fact that any
director, or any firm of which any director is a member, or any
corporation of which any director is an officer, director or
stockholder, is in any
5
<PAGE>
way interested in such transaction or contract; provided that at the
meeting of the Board of Directors or of a committee thereof having
authority in the premises, authorizing or affirming such contract or
transaction, the existence of the interest of such director, firm or
corporation is disclosed or made known and there shall be present a
quorum of the Board of Directors or of the directors constituting such
committee, and such contract or transaction shall be approved by a
majority of such quorum, which majority shall consist of directors not
so interested or connected. Nor shall any director be liable to
account to the Corporation for any profit realized by him from or
through any such transaction or contract of the Corporation ratified
or approved as aforesaid, by reason of the fact that he or any firm of
which he is a member, or any corporation of which he is an officer,
director or stockholder, was interested in such transaction or
contract. Directors so interested may be counted when present at
meetings of the Board of Directors or such committee for the purpose
of determining the existence of a quorum. Any contract, transaction or
act of the Corporation or of the Board of Directors or of any
committee thereof (whether or not approved or ratified as hereinabove
in this paragraph provided) which shall be ratified by a majority in
interest of a quorum of the stockholders having voting power at any
annual meeting or any special meeting called for such purpose, shall
be as valid and as binding as though ratified by every stockholder of
the Corporation.
(b) The number of directors which shall constitute the whole Board shall
be such as from time to time shall be fixed by resolution adopted by
affirmative vote of a majority of the whole Board except that such
number shall not be less than three (3) nor more than fifteen (15),
the exact number to be eleven (11) until otherwise determined by
resolution adopted by affirmative vote of a majority of the whole
Board. Commencing with the annual election of directors by the
stockholders of the Corporation in 1983, the directors of the
Corporation shall be divided into three classes: Class I, Class II and
Class III. Membership in such classes shall be as nearly equal in
number as possible. The term of office of the initial Class I
directors shall expire at the annual election of directors by the
stockholders of the Corporation in 1984, the term of office of the
initial Class II directors shall expire at the annual election of
directors by the stockholders of the Corporation in 1985, and the term
of office of the initial Class III directors shall expire at the
annual election of directors by the stockholders of the Corporation in
1986, or thereafter when their respective successors in each case are
elected by the stockholders and qualified subject, however, to prior
death, resignation, retirement, disqualification or removal from
office. At each succeeding annual election of directors by the
stockholders of the Corporation beginning in 1984, the directors
chosen to succeed those whose terms then expire shall be identified as
being of the same class as the directors they succeed and shall be
elected for a term expiring at the third succeeding annual election of
directors by the stockholders of the Corporation, or thereafter when
their respective successors in each case are elected by the
stockholders and qualified. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as to
maintain the number of
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directors in each class as nearly equal as possible, and any
additional director of any class elected to fill a vacancy resulting
from an increase in such class shall hold office for a term that shall
coincide with the remaining term of that class, but in no case will a
decrease in the number of directors shorten the term of any incumbent
director.
Any vacancy on the Board of Directors that results from an increase in
the number of directors may be filled by a majority of the Board of
Directors then in office, and any other vacancy occurring in the Board
of Directors may be filled by a majority of the directors then in
office, although less than quorum, or by a sole remaining director.
Any director elected to fill a vacancy not resulting from an increase
in the number of directors shall have the same remaining term as that
of his predecessor.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall
have the right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders, the
election, term of office, filling of vacancies and other features of
such directorships shall be governed by the terms of this Certificate
of Incorporation applicable thereto, and such directors so elected
shall not be divided into classes pursuant to this Section (b) of
Article EIGHTH unless expressly provided by such terms.
Subject to the rights of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation
to elect directors under specified circumstances, any director may be
removed from office, with or without cause and only by the affirmative
vote of the holders of 80% of the combined voting power of the then
outstanding shares of stock entitled to vote generally in the election
of directors, voting together as a single class.
(c) Except to the extent prohibited by law, the Board of Directors shall
have the right (which, to the extent exercised, shall be exclusive) to
establish the rights, powers, duties, rules and procedures that from
time to time shall govern the Board of Directors and each of its
members, including without limitation the vote required for any action
by the Board of Directors, and that from time to time shall affect the
director's power to manage the business and affairs of the
Corporation; and no By-Law shall be adopted by stockholders which
shall impair or impede the implementation of the foregoing.
(d) The directors shall have the power to make, alter, amend, change, add
to or repeal the By-Laws of the Corporation.
(e) The Board of Directors shall have authority from time to time to set
apart out of any assets of the Corporation otherwise available for
dividends a reserve or reserves as working capital or for any other
purpose or purposes, and to abolish or
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add to any such reserve or reserves from time to time as said Board
may deem to be in the interest of the Corporation; and said Board
shall likewise have power to determine in its discretion, except as
herein otherwise provided, what part of the assets of the Corporation
available for dividends in excess of such reserve or reserves shall be
declared in dividends and paid to the stockholders of the Corporation.
(f) The Board of Directors shall have power from time to time to determine
to what extent and at what times and places and under what conditions
and regulations the accounts and books of the Corporation, or any of
them, shall be open to the inspection of the stockholders; and no
stockholder shall have any right to inspect any account or book or
document of the Corporation, except as conferred by the laws of the
State of Delaware, unless and until authorized so to do by resolution
of the Board of Directors or of the stockholders of the Corporation.
(g) Except as otherwise provided in the By-Laws, the stockholders of the
Corporation and the Board of Directors may hold their meetings and
have an office or offices outside of the State of Delaware, and,
subject to the provisions of the laws of said State, may keep the
books of the Corporation outside of said State at such places as may,
from time to time, be designated by the Board of Directors.
(h) The By-Laws of the Corporation may confer powers upon the directors in
addition to those granted in the Certificate of Incorporation, as
amended, and in addition to the powers expressly conferred upon them
by the laws of the State of Delaware.
(i) Any action required or permitted to be taken by the stockholders of
the Corporation must be effected as a duly called annual or special
meeting of such holders and may not be effected by any consent in
writing by such holders. Except as otherwise required by law and
subject to the rights of the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon
liquidation, special meetings of stockholders of the Corporation may
be called only by the Board of Directors pursuant to a resolution
approved by a majority of the entire Board of Directors.
(j) No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty by such director as a director; provided, however, that
this Article EIGHTH shall not eliminate or limit the liability of a
director to the extent provided by applicable law (i) for any breach
of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the General Corporation Law of Delaware, or (iv)
for any transaction from which the director derived an improper
personal benefit. No amendment to or repeal of this Article EIGHTH
shall apply to, or have any effect on, the liability or alleged
liability of any
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director of the Corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment or
repeal.
NINTH: Certain Business Combinations
SECTION 1. Vote Required for Certain Business Combinations.
A. Higher Vote for Certain Business Combinations. In addition to any
affirmative vote required by law or this Certificate of Incorporation, and
except as otherwise expressly provided in section 2 of this Article NINTH:
(i) any merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with (a) any Interested Shareholder (as
hereinafter defined) or (b) any other corporation (whether or not
itself an Interested Stockholder) which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter defined) of an
Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or
with any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any Subsidiary
having an aggregate Fair Market Value of $50,000,000 or more; or
(iii) the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of transactions) of any securities of
the Corporation or any Subsidiary to any Interested Stockholder or
any Affiliate of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof) having an
aggregate Fair Market Value of $50,000,000 or more; or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an
Interested Stockholder of any Affiliate of any Interested
Stockholder; or
(v) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
other transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder or any Affiliate of any
Interested Stockholder;
shall require the affirmative vote of the holders of at least 80% of the voting
power of the then outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (the "Voting Stock"),
voting together as a single class (it being understood that for purposes of this
Article NINTH, each share of the Voting Stock shall have the number of
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votes granted to it pursuant to Article FOURTH of this Certificate of
Incorporation). Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage may be specified, by
law or in any agreement with any national securities exchange or otherwise.
B. Definition of "Business Combination". The term "Business Combination" as
used in this Article NINTH shall mean any transaction which is referred to in
any one or more of clauses (i) through (v) of paragraph A of this Section 1.
SECTION 2. When Higher Vote is Not required. The provisions of Section 1 of this
Article NINTH shall not be applicable to any particular Business Combination
involving an Interested Stockholder, and such Business Combination shall require
only such affirmative vote as is required by law and any other provision of this
Certificate of Incorporation, if the Business Combination shall have been
approved by a majority of the Disinterested Directors (as hereinafter defined).
SECTION 3. Certain Definitions. For the purposes of this Article NINTH:
A. A "person" shall mean any individual, firm, corporation or other entity.
B. "Interested Stockholder" shall mean any person (other than the Corporation,
any Subsidiary or any employee benefit plan of the Corporation) who or
which:
(i) is the beneficial owner, directly or indirectly, of more than 10% of
the voting power of the outstanding Voting Stock; or
(ii) is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of more than 10% of the
voting power of the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any shares of Voting
Stock which were at any time within the two-year period immediately
prior to the date in question beneficially owned by any Interested
Stockholder, if such assignment or succession shall have occurred in
the course of a transaction or series of transactions not involving
a public offering within the meaning of the Securities Act of 1933.
C. A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or Associates has (a) the
right to acquire (whether such right is exercisable immediately or
only after the passage of time),
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pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options,
or otherwise, or (b) the right to vote pursuant to any agreement,
arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly, by any other
person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of Voting
Stock.
D. For the purposes of determining whether a person is an Interested
Stockholder pursuant to paragraph B of this Section 3, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned through
application of paragraph C of this Section 3 but shall not include any other
shares of Voting Stock which may be issuable pursuant to any agreement,
arrangement or understanding, or, upon exercise of conversion rights, warrants
or options, or otherwise.
E. "Affiliate" or "Associate" shall have the respective meanings ascribed to
such terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on February 22, 1986.
F. "Subsidiary" means any corporation of which a majority of any class of
equity security is owned, directly or indirectly, by the Corporation; provided,
however, that for the purposes of the definition of Interested Stockholder set
forth in paragraph B of this section 3, the term "Subsidiary" shall mean only a
corporation of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
G. "Disinterested Director" means any member of the Board of Directors of the
Corporation (the "Board") who is unaffiliated with the Interested Stockholder
and was a member of the Board prior to the time that the Interested Stockholder
became an Interested Stockholder, and any other Director who is unaffiliated
with the Interested Stockholder and, prior to such Director's election or
appointment as a director, was recommended or approved by a majority of
Disinterested Directors then on the Board.
SECTION 4. Powers of the Board of Directors. A majority of the directors of the
Corporation shall have the power and duty to determine for the purposes of this
Article NINTH, on the basis of information known to them after reasonable
inquiry, (A) whether a person is an Interested Stockholder, (B) the number of
shares of Voting Stock beneficially owned by any person, (C) whether a person is
an Affiliate or Associate of another, (D) whether the assets which are the
subject of any Business Combination have, or the consideration to be received
for the issuance or transfer of securities by the Corporation or any Subsidiary
in any Business Combination has, an aggregate Fair Market Value of $50,000,000
or more. A majority of the directors of the Corporation shall have the further
power to interpret all the terms and provisions of this Article NINTH.
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SECTION 5. No Effect of Fiduciary Obligations of interested Stockholders.
Nothing contained in this Article NINTH shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
SECTION 6. Amendment, Repeal, etc. Notwithstanding any other provisions of this
Certificate of Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that a lesser percentage may be specified by law, this
Certificate of Incorporation or the Bylaws of the Corporation), the affirmative
vote of the holders of 80% or more of the outstanding Voting Stock, voting
together as a single class, shall be required to amend or repeal, or adopt any
provisions inconsistent with this Article NINTH.
TENTH: (a) Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, paragraphs (b) and (i) of Article EIGHTH hereof
and Article III, Sections 1(b) and 5 and Article IV, Sections 2 and 3 of the
Bylaws of the Corporation shall not be altered, amended or repealed and no
provision inconsistent therewith shall be adopted without the affirmative vote
of the holders of at least 80% of the voting power of all the shares of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 80% of the voting power of all the shares of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to alter, amend, adopt any provision
inconsistent with or repeal this paragraph (a) of Article TENTH.
(b) The Corporation reserves the right to amend, alter, change or repeal any
provision contained in its Certificate of Incorporation, or any amendment
thereof, in the manner now or hereafter prescribed by the laws of the State of
Delaware or this Certificate of Incorporation, and all rights conferred upon the
stockholders of the Corporation are granted subject to this reservation.
3. The foregoing Restated Certificate of Incorporation was duly adopted by
the Board of Directors of the Corporation at a meeting of such Board of
Directors duly called, convened and held in accordance with the
provisions of Section 245 of the General Corporation Law of the State
of Delaware.
4. The foregoing Restated Certificate of Incorporation of the Corporation
only restates and integrates and does not further amend the provisions
of said Corporation's Restated Certificate of Incorporation as
heretofore amended or supplemented and there is no discrepancy between
those provisions and the provisions of the foregoing Restated
Certificate of Incorporation.
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IN WITNESS WHEREOF, said FMC CORPORATION has caused this Restated
Certificate of Incorporation to be signed by J. Paul McGrath, its Senior Vice
President, General Counsel and Secretary and its corporate seal to be hereunto
affixed and attested by Charlotte Mitchell Smith, its Assistant Secretary, this
16th day of June, 1998.
FMC CORPORATION
By: /s/ J. Paul McGrath
--------------------------------
Senior Vice-President, General
Counsel and Secretary
ATTEST:
By: /s/ Charlotte Mitchell Smith
-----------------------------
Assistant Secretary
State of Illinois
ss:
County of Cook
I, Barbara J. Neal, a Notary Public in and for said County and State, hereby
certify that J. Paul McGrath personally known to me to be a Senior Vice
President, General Counsel and Secretary of FMC Corporation, and Charlotte
Mitchell Smith, personally known to me to be an Assistant Secretary of said
corporation, and personally known to me to be the same persons whose names are
subscribed to the foregoing instrument, appeared before me this day in person
and severally acknowledged that as such Senior Vice President, General Counsel
and Secretary and Assistant Secretary respectively they signed and delivered the
said instrument as Senior Vice President, General Counsel and Secretary and
Assistant Secretary, respectively of said corporation, and caused the corporate
seal of said corporation to be affixed thereto, pursuant to authority given by
the Board of Directors of said corporation, as their free and voluntary act, and
as the free and voluntary act and deed of said corporation for the uses and
purposes therein set forth set forth.
Given under my hand and official seal this 16th day of June, 1998.
/s/ Barbara J. Neal
---------------------------------
Notary Public
Commission Expires: June 6, 1999
Notary Seal
-------------------------------
"OFFICIAL SEAL"
BARBARA J. NEAL
Notary Public State of Illinois
My Commission Expires 6-6-99
-------------------------------
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Exhibit 5.1
Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
July 21, 1998
FMC Corporation
200 East Randolph Drive
Chicago, Illinois 60601
Ladies and Gentlemen:
We have acted as special counsel to FMC Corporation, a Delaware corporation
(the "Company"), in connection with the preparation of the Form S-3 Registration
Statement (the "Registration Statement") to be filed with the Securities and
Exchange Commission (the "Commission"). The Registration Statement relates to
the issuance and sale from time to time, pursuant to Rule 415 of the General
Rules and Regulations promulgated under the Securities Act of 1933, as amended
(the "Act"), of the following securities with an aggregate public offering price
of up to $500,000,000 (or the equivalent thereof, based on the applicable
exchange rate at the time of sale, in one or more foreign currencies, currency
units or composite currencies as shall be designated by the Company): (i) shares
of the Company's Common Stock, $.10 par value per share ("Common Stock"); (ii)
whole or fractional shares of the Company's Preferred Stock, no par value
(collectively, "Preferred Stock"); (iii) Preferred Stock represented by
depository shares ("Depository Shares"); (iv) the Company's debt securities (the
"Debt Securities"), which may be issued under the Indenture, dated as of July 1,
1996, between the Company and Harris Trust and Savings Bank, as trustee (the
"Senior Indenture"), or the form of Subordinated Indenture, between the Company
and Harris Trust and Savings Bank, as trustee (the "Subordinated Indenture" and,
together with the Senior Indenture, the "Indentures"); (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" and, collectively with the Common Stock Warrants and
the Preferred Stock Warrants, the "Warrants"). The Common Stock, Preferred
Stock, Depository Shares, Debt Securities and Warrants are collectively referred
to herein as the "Offered Securities". We do not express any opinion herein as
to the issuance of Debt Securities under any indenture other than the
Indentures. Pursuant to Rule 429 under the Act, the prospectus included in the
Registration Statement also relates to $160,000,000 aggregate principal amount
of Offered Securities registered under Registration No. 33-62415 (the "Prior
Registration Statement"). This opinion is furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Act.
<PAGE>
FMC Corporation
July 21, 1998
Page 2
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of: (i) the Registration
Statement filed with the Commission on July 21, 1998 under the Act; (ii) the
Prior Registration Statement; (iii) the Senior Indenture and the form of
Subordinated Indenture proposed to be entered into by the Company and the
trustee thereunder; (iv) the form of underwriting agreement (the "Debt
Underwriting Agreement") proposed to be entered into by the Company and one or
more underwriters to be named therein in connection with any firm commitment
underwritten offering of Debt Securities or Warrants; (v) the form of
underwriting agreement (the "Equity Underwriting Agreement" and, together with
the Debt Underwriting Agreement, the "Underwriting Agreements") proposed to be
entered into by the Company and one or more underwriters in connection with any
firm commitment underwritten offering of Common Stock, Preferred Stock,
Depository Shares or Warrants; (vi) the Company's Restated Certificate of
Incorporation as in effect on the date hereof; (vii) the Company's Restated By-
laws as in effect on the date hereof; and (viii) resolutions adopted by the
Board of Directors of the Company authorizing (A) the issuance and sale of the
Offered Securities and (B) the proper officers and designated committee of the
Board of Directors of the Company to determine the final form and terms of the
Offered Securities (the "Board Resolutions"). We have also examined originals or
copies, certified or otherwise identified to our satisfaction, of such records
of the Company and such agreements, certificates of public officials,
certificates of officers or other representatives of the Company and others, and
such other documents, certificates and records, as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed or to be executed by parties other than the
Company, we have assumed that such parties have the power, corporate or other,
to enter into and perform all obligations thereunder and have also assumed the
due authorization by all requisite action, corporate or other, the execution and
delivery by such parties of such documents and the validity and binding effect
thereof. As to any facts material to the opinions expressed herein that were not
independently established or verified, we have relied upon statements and
representations of officers and other representatives of the Company and others.
<PAGE>
FMC Corporation
July 21, 1998
Page 3
Members of our firm are admitted to the bar in the States of Illinois and
New York, and we do not express any opinion as to the laws of any other
jurisdiction other than the General Corporation Law of the State of Delaware.
The Offered Securities may be issued from time to time on a delayed or
continuous basis, and this opinion is limited to the laws, including the rules
and regulations, as in effect on the date hereof.
Based upon and subject to the foregoing, we are of the opinion that:
1. When (i) the Registration Statement shall have become effective under
the Act, (ii) the Blue Sky or securities laws of certain states shall have been
complied with, (iii) if the Debt Securities are to be sold pursuant to a firm
commitment underwritten offering, the Debt Underwriting Agreement with respect
to the Debt Securities has been duly authorized, executed and delivered by the
Company and the other parties thereto, (iv) the applicable Indenture relating to
the Debt Securities shall have been executed and delivered by the Company and
the trustee and duly qualified under the Trust Indenture Act of 1939, as
amended, (v) the terms of the Debt Securities and of their issuance shall have
been duly established as contemplated by the Board Resolutions in conformity
with the applicable Indenture relating to the Debt Securities so as not to
violate any applicable law or the Company's Restated Certificate of
Incorporation or Restated By-laws or result in a default under or breach of any
agreement or instrument binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company, and (vi) the Debt Securities shall have been (A)
duly authorized, executed, authenticated and delivered against payment therefor
in accordance with the applicable Indenture and the Debt Underwriting Agreement,
if any, or any other applicable duly authorized, executed and delivered purchase
agreement or (B) issued upon conversion or exchange of Debt Securities or
Preferred Stock which, by their respective terms, are convertible into or
exchangeable for Debt Securities or upon exercise of Debt Warrants, and the
Company shall have received any additional consideration which is payable upon
such conversion, exchange or exercise, the Debt Securities shall constitute
binding obligations of the Company enforceable in accordance with their terms,
except as enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally and (b)
general principles of equity (regardless of whether enforcement is considered in
a proceeding of law or in equity), and except that enforcement thereof may also
be limited by (x) requirements that a claim with respect to any Debt Securities
denominated other than in United States dollars (or a foreign currency or
foreign currency unit judgment in respect of such claim) be converted into
United
<PAGE>
FMC Corporation
July 21, 1998
Page 4
States dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law or (y) governmental authority to limit, delay or prohibit the
making of payments in foreign currency or currency units or payment outside the
United States.
2. When (i) the Registration Statement shall have become effective under
the Act, (ii) the Blue Sky or securities laws of certain states shall have been
complied with, (iii) if the Preferred Stock is to be sold pursuant to a firm
commitment underwritten offering, the Equity Underwriting Agreement with respect
to such Preferred Stock has been duly authorized, executed and delivered by the
Company and the other parties thereto, (iv) the Board of Directors, including
any appropriate committee appointed thereby, and appropriate officers of the
Company have taken all necessary corporate action to approve the issuance and
terms of the shares of the Preferred Stock and related matters, including the
adoption of a Certificate of Designation for the Preferred Stock, (v) the filing
of the applicable Certificate of Designation with the Secretary of State of the
State of Delaware has duly occurred, (vi) the terms of the Preferred Stock and
of their issuance and sale have been duly established in conformity with the
Company's Restated Certificate of Incorporation, including the Certificate of
Designation relating to the Preferred Stock, and the Company's Restated By-laws
so as not to violate any applicable law or the Company's Restated Certificate of
Incorporation or Restated By-laws or result in a default under or breach of any
agreement or instrument binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company, (vii) certificates representing the shares of the
Preferred Stock are duly executed, countersigned, registered and delivered upon
payment of the agreed-upon consideration therefor, and (viii) the Preferred
Stock shall have been (A) authorized, issued and sold in accordance with the
related Equity Underwriting Agreement or any other applicable duly authorized,
executed and delivered purchase agreement and the Company shall have received
consideration therefor or (B) issued upon conversion or exchange of Debt
Securities or Preferred Stock which, by their respective terms, are convertible
into or exchangeable for shares of Preferred Stock or upon exercise of Preferred
Stock Warrants and the Company shall have received any additional consideration
which is payable upon such conversion, exchange or exercise, the Preferred Stock
will be validly issued, fully paid and nonassessable.
3. When (i) the Registration Statement shall have become effective, (ii)
the Blue Sky or securities laws of certain states shall have been complied with,
(iii) if the Depository Shares are to be sold pursuant to a firm commitment
underwritten offering, the Equity Underwriting Agreement with respect to the
Depository Shares has been duly authorized, executed and delivered by the
Company and
<PAGE>
FMC Corporation
July 21, 1998
Page 5
the other parties thereto, (iv) the Board of Directors, including any
appropriate committee appointed thereby, and appropriate officers of the Company
have taken all necessary corporate action to approve the issuance and terms of
the Depository Shares and related matters, including the adoption of the
Certificate of Designation for the related Preferred Stock, (v) the filing of
the applicable Certificate of Designation with the Secretary of State of the
State of Delaware has duly occurred, (vi) a deposit agreement relating to the
Depository Shares (the "Depository Agreement") in the form to be filed as an
exhibit to the Registration Statement, any amendment thereto or any document
incorporated by reference therein as contemplated by the Board Resolutions has
been duly executed and delivered by the Company and a depository, (vii) the
terms of the Depository Shares and of their issuance and sale have been duly
established in conformity with the Deposit Agreement so as not to violate any
applicable law or the Company's Restated Certificate of Incorporation or
Restated By-laws or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
the Company, (viii) the related Preferred Stock which is represented by the
Depository Shares has been duly authorized, validly issued and delivered to the
applicable depository for deposit in accordance with the laws of the State of
Delaware and any other applicable jurisdiction, and (ix) the receipts evidencing
the Depository Shares (the "Receipts") are duly issued against the deposit of
the Preferred Stock in accordance with the Deposit Agreement, such Receipts will
be validly issued and will entitle the holders thereof to the rights specified
therein and in the Deposit Agreement.
4. When (i) the Registration Statement shall have become effective under
the Act, (ii) the Blue Sky or securities laws of certain states shall have been
complied with, (iii) if the Common Stock is to be sold pursuant to a firm
commitment underwritten offering, the Equity Underwriting Agreement with respect
to such Common Stock has been duly authorized, executed and delivered by the
Company and the other parties thereto, (iv) certificates representing the shares
of the Common Stock are duly executed, countersigned, registered and delivered
upon payment of the agreed upon consideration therefor, (v) the Board of
Directors of the Company, including any appropriate committee appointed thereby,
and appropriate officers of the Company have taken all necessary corporate
action to approve the issuance of the Common Stock and related matters, (vi) the
terms of the issuance of the Common Stock have been duly established as
contemplated by the Board Resolutions in conformity with the Company's Restated
Certificate of Incorporation and Restated By-laws so as not to violate any
applicable law or the Company's Restated Certificate of Incorporation or
Restated By-laws or result in a default under or
<PAGE>
FMC Corporation
July 21, 1998
Page 6
breach of any agreement or instrument binding upon the Company and so as to
comply with any requirement or restriction imposed by any court or governmental
body having jurisdiction over the Company, and (vii) the Common Stock shall have
been (A) authorized, issued and sold in accordance with the related Equity
Underwriting Agreement or any other applicable duly authorized, executed and
delivered purchase agreement and the Company shall have received consideration
therefor, provided that the amount of such consideration shall not be less than
the par value thereof, or (B) issued upon conversion or exchange of Debt
Securities or Preferred Stock which, by their respective terms, are convertible
into or exchangeable for shares of Common Stock or upon exercise of Common Stock
Warrants, and the Company shall have received any additional consideration which
is payable upon such conversion or exchange, the Common Stock shall be validly
issued, fully paid and nonassessable.
5. When (i) the Registration Statement has become effective under the
Act, (ii) the Blue Sky or securities laws of certain states shall have been
complied with, (iii) if the Warrants are to be sold pursuant to a firm
commitment underwritten offering, the Underwriting Agreement with respect to
such Warrants has been duly authorized, executed and delivered by the Company
and the other parties thereto, (iv) the warrant agreement relating to the
Warrants (the "Warrant Agreement") in the form to be filed as an exhibit to the
Registration Statement, any amendment thereto or any document incorporated by
reference therein has been duly authorized, executed and delivered by the
Company and the other parties thereto, (v) the terms of the Warrants and of
their issuance and sale have been duly established in conformity with the
Warrant Agreement relating to such Warrants so as not to violate any applicable
law, the Company's Restated Certificate of Incorporation or Restated By-laws or
result in a default under or breach of any agreement or instrument binding upon
the Company and so as to comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company, and (vi)
the Warrants have been duly executed, delivered and countersigned, in accordance
with the Warrant Agreement relating to such Warrants, and duly issued and sold
in the applicable form to be filed as an exhibit to the Registration Statement
or any amendment thereto and in the manner contemplated by the related
Underwriting Agreement or any other duly authorized, executed and delivered
purchase agreement and the Company shall have received consideration therefor,
any such Warrants will constitute valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally and (b)
general principles of equity (regardless of whether enforcement is considered in
a proceeding of law or in equity).
<PAGE>
FMC Corporation
July 21, 1998
Page 7
To the extent that the obligations of the Company under a Deposit Agreement
relating to the Depository Shares or under an Indenture relating to the Debt
Securities may be dependent upon such matters, we have assumed for purposes of
this opinion (i) that the applicable depository or trustee, as the case may be,
is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization and is duly qualified to engage in the activities
contemplated by the applicable Deposit Agreement or Indenture, as the case may
be, (ii) that such Deposit Agreement or Indenture, as the case may be, has been
duly authorized, executed and delivered by and constitutes the legal, valid and
binding obligation of such depository or trustee, as the case may be,
enforceable in accordance with its respective terms, (iii) that such depository
or trustee, as the case may be, is in compliance, generally and with respect to
acting as a depository or trustee, respectively, under the applicable Deposit
Agreement or Indenture, with all applicable laws and regulations, and (iv) that
such depository or trustee has the requisite organizational and legal power and
authority to perform its obligations under the applicable Deposit Agreement or
Indenture, as the case may be.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement. We also consent to the reference to our
firm under the caption "Legal Matters" in the Registration Statement. In giving
this consent, we do not thereby admit that we are included in the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission.
Very truly yours,
WINSTON & STRAWN
<PAGE>
Exhibit 12.1 Computation of Ratios of Earnings to Fixed Charges
--------------------------------------------------
(In millions, except ratio data)
<TABLE>
<CAPTION>
Three Months Ended
March 31, Years ended December 31,
------------------- ------------------------------------------------
1998 1997 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income (loss) from continuing operations
before income taxes, extraordinary
items and cumulative effect of change
in accounting principle $36.2 $27.8 $(59.7) $235.8 $152.7 $150.9 $(79.9)
Minority interests 0.9 2.4 8.9 9.6 5.1 1.6 0.5
Undistributed (earnings) loss of
affiliates (2.8) (1.6) (2.0) (6.7) 1.9 4.0 0.3
Interest expense and amortization
of debt discount, fees and expenses 26.7 31.9 118.3 103.0 84.0 64.1 70.4
Amortization of capitalized interest 1.5 1.8 7.0 7.5 7.7 7.5 7.4
Interest included in rental expense 3.6 4.2 16.6 15.2 16.7 17.8 18.0
----- ----- ------ ------ ------ ------ ------
Total earnings $66.1 $66.5 $ 89.1 $364.4 $268.1 $245.9 $ 16.7
===== ===== ====== ====== ====== ====== ======
Fixed charges:
Interest expense and amortization
of debt discount, fees and expenses $26.7 $31.9 $118.3 $103.0 $ 84.0 $ 64.1 $ 70.4
Interest capitalized as part of
fixed assets 1.5 0.6 6.6 15.5 10.2 2.7 0.6
Interest included in rental expense 3.6 4.2 16.6 15.2 16.7 17.8 18.0
----- ----- ------ ------ ------ ------ ------
Total fixed charges $31.8 $36.7 $141.5 $133.7 $110.9 $ 84.6 $ 89.0
===== ===== ====== ====== ====== ====== ======
Ratio of earnings to fixed charges 2.1x 1.8x 0.6x 2.7x 2.4x 2.9x 0.2x
===== ===== ====== ===== ====== ====== ======
(A) (B) (C)
</TABLE>
(A) Earnings did not cover fixed charges by $52.4 million for the year ended
December 31, 1997. The ratio of earnings to fixed charges for the year
ended December 31, 1997 before asset impairments and restructuring and
other charges was 2.5x.
(B) The ratio of earnings to fixed charges for the year ended December 31, 1995
before the gain on the sale of FMC Wyoming stock, asset impairments,
restructuring and other charges, and the write-off of acquired in-process
research and development costs was 2.9x.
(C) Earnings did not cover fixed charges by $72.3 million for the year ended
December 31, 1993. The ratio of earnings to fixed charges for the year
ended December 31, 1993 before asset impairments and restructuring and
other charges was 1.6x.
<PAGE>
Exhibit 15.1
Letter Re: Unaudited Interim Financial Information
--------------------------------------------------
FMC Corporation
Chicago, Illinois
Ladies and Gentlemen:
With respect to this Registration Statement on Form S-3, we acknowledge our
awareness of the use herein of our report dated April 14, 1998 related to our
review of interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such report is 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,
KPMG Peat Marwick LLP
Chicago, Illinois
July 15, 1998
<PAGE>
Exhibit 23.1
Consent of KPMG Peat Marwick LLP
--------------------------------
The Board of Directors
FMC Corporation:
We consent to incorporation by reference in the Registration Statement on
Form S-3 of FMC Corporation of our report dated January 20, 1998, relating to
the consolidated balance sheets of FMC Corporation and consolidated subsidiaries
as of December 31, 1997 and 1996, and the related consolidated statements of
income, cash flows and changes in stockholders' equity for each of the years in
the three-year period ended December 31, 1997, which report is incorporated by
reference in the December 31, 1997 annual report on Form 10-K of FMC
Corporation, and to the reference to our firm under the heading "Experts" in the
Prospectus.
KPMG Peat Marwick LLP
Chicago, Illinois
July 15, 1998
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as
Trustee
Check if an Application to Determine
Eligibility of a Trustee Pursuant to Section
305(b)(2)_______________
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 23-1614034
(I.R.S. Employer
(State of Incorporation) Identification No.)
111 West Monroe Street, Chicago, Illinois 60603
(Address of principal executive offices)
Daniel G. Donovan, Harris Trust and Savings Bank,
111 West Monroe Street, Chicago, Illinois, 60603
312-461-2908
(Name, address and telephone number for agent for service)
FMC CORPORATION
(Name of Obligor)
Delaware 94-0479804
(I.R.S. Employer
(State of Incorporation) Identification No.)
200 East Randolph Drive
Chicago, Illinois 60601
(Address of principal executive offices)
Debt Securities
(Title of indenture securities)
<PAGE>
1. GENERAL INFORMATION. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164 West
Jackson Boulevard, Chicago, Illinois; Federal Deposit Insurance
Corporation, Washington, D.C.; The Board of Governors of the Federal
Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise corporate
trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee,
describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. thru 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee as now in effect
which includes the authority of the trustee to commence business and
to exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between Harris
Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which
constitutes the articles of association of the Trustee as now in
effect and includes the authority of the Trustee to commence business
and to exercise corporate trust powers was filed in connection with
the Registration Statement of Louisville Gas and Electric Company,
File No. 2-44295, and is incorporated herein by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in connection
with the Registration Statement of Commercial Federal Corporation,
File No. 333-20711, and is incorporated herein by reference.
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
(included as Exhibit B on page 3 of this statement)
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 15th day of July, 1998.
Harris Trust and Savings Bank
/s/ DGDonovan
By:___________________________
D.G. Donovan
Assistant Vice President
EXHIBIT A
The consents of the Trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that
reports of examinations of said trustee by Federal and State authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
Harris Trust and Savings Bank
/s/ DGDonovan
By:___________________________
D.G. Donovan
Assistant Vice President
2
<PAGE>
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of March 31, 1998, as published in accordance with a
call made by the State Banking Authority and by the Federal Reserve Bank of the
Seventh Reserve District.
[LOGO APPEARS HERE] HARRIS BANK
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on March 31, 1998, a state banking institution organized and operating
under the banking laws of this State and a member of the Federal Reserve System.
Published in accordance with a call made by the Commissioner of Banks and Trust
Companies of the State of Illinois and by the Federal Reserve Bank of this
District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C> <C>
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin................... $ 1,039,854
Interest bearing balances............................................. $ 290,921
Securities:
a. Held-to-maturity securities............................................. $ 0
b. Available-for-sale securities........................................... $ 4,266,201
Federal funds sold and securities purchased under agreements to resell..... $ 82,000
Loans and lease financing receivables:
Loans and leases, net of unearned income.............................. $8,726,578
LESS: Allowances for loan and lease losses............................ $ 101,318
----------
Loans and leases, net of unearned income, allowance, and reserve
(item 4.a minus 4.b).................................................. $ 8,625,260
Assets held in trading accounts............................................ $ 120,674
Premises and fixed assets (including capitalized leases)................... $ 219,475
Other real estate owned.................................................... $ 699
Investments in unconsolidated subsidiaries and associated companies........ $ 120
Customer's liability to this bank on acceptances outstanding............... $ 46,688
Intangible assets.......................................................... $ 266,411
Other assets............................................................... $ 773,386
-----------
TOTAL ASSETS............................................................... $15,731,689
===========
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits:
In domestic offices..................................................................... $ 8,270,648
Non-interest bearing................................................................. $2,684,862
Interest bearing..................................................................... $5,585,786
In foreign offices, Edge and Agreement subsidiaries, and IBF's.......................... $ 1,307,928
Non-interest bearing................................................................. $ 23,432
Interest bearing..................................................................... $1,284,496
Federal funds purchased and securities sold under agreements to repurchase in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's:
Federal funds purchased & securities sold under agreements to repurchase.................. $ 3,599,510
Trading Liabilities....................................................................... 74,487
Other borrowed money:
a. With remaining maturity of one year or less.......................................... $ 471,692
b. With remaining maturity of more than one year........................................ $ 0
Bank's liability on acceptances executed and outstanding.................................. $ 46,688
Subordinated notes and debentures......................................................... $ 325,000
Other liabilities......................................................................... $ 386,442
---------------------------
TOTAL LIABILITIES......................................................................... $14,482,395
===========================
EQUITY CAPITAL
Common stock.............................................................................. $ 100,000
Surplus................................................................................... $ 601,026
a. Undivided profits and capital reserves............................................... $ 545,185
b. Net unrealized holding gains (losses) on available-for-sale securities............... $ 2,802
---------------------------
TOTAL EQUITY CAPITAL...................................................................... $ 1,249,294
===========================
Total liabilities, limited-life preferred stock, and equity capital....................... $15,731,689
===========================
</TABLE>
I, Pamela Piarowski, Vice President of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
PAMELA PIAROWSKI
1/30/98
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and, to the best of our
knowledge and belief, has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and the
Commissioner of Banks and Trust Companies of the State of Illinois and is true
and correct.
EDWARD W. LYMAN,
ALAN G. McNALLY,
RICHARD E. TERRY Directors.
4
