<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 26, 1995.
REGISTRATION NO. 33-61809
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
FOSTER WHEELER CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
NEW YORK 13-1855904
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
PERRYVILLE CORPORATE PARK
CLINTON, NEW JERSEY 08809
(908) 730-4000
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
THOMAS R. O'BRIEN, ESQ.
FOSTER WHEELER CORPORATION
PERRYVILLE CORPORATE PARK
CLINTON, NEW JERSEY 08809
TELEPHONE: (908) 730-4000
FACSIMILE: (908) 730-5300
(NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
TIMOTHY B. GOODELL, ESQ. STACY J. KANTER, ESQ.
WHITE & CASE ERICA WARD, ESQ.
1155 AVENUE OF THE AMERICAS SKADDEN, ARPS, SLATE, MEAGHER & FLOM
NEW YORK, NEW YORK 10036 919 THIRD AVENUE
TELEPHONE: (212) 819-8200 NEW YORK, NEW YORK 10022
FACSIMILE: (212) 354-8113 TELEPHONE: (212) 735-3000
FACSIMILE: (212) 735-2000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
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, please check the following box. /X/
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<PAGE> 2
PROSPECTUS
$500,000,000
FOSTER WHEELER CORPORATION
SECURITIES
---------------------------
Foster Wheeler Corporation ("Foster Wheeler" or the "Company") may offer
from time to time, together or separately, up to $500,000,000 aggregate
principal amount, or its equivalent based on the applicable exchange rate at the
time of the offering, of its (i) debt securities consisting of debentures, notes
or other unsecured evidences of indebtedness (the "Debt Securities"), which may
be either senior debt securities (the "Senior Debt Securities") or subordinated
debt securities (the "Subordinated Debt Securities"); (ii) shares of preferred
stock (the "Preferred Stock"), which may be issued in the form of depositary
receipts (the "Depositary Shares") that will represent a fraction of a share of
Preferred Stock; (iii) shares of common stock (the "Common Stock"); and (iv)
warrants to purchase securities of the Company as shall be designated by the
Company at the time of the offering (the "Warrants"), in each case in amounts,
at prices and on terms to be determined at the time of the offering. The Debt
Securities, Preferred Stock, Depositary Shares, Common Stock and the Warrants
are collectively called the "Securities."
The form in which the Securities are to be issued, their specific
designation, aggregate principal amount or aggregate initial offering price,
maturity, if any, rate and times of payment of interest or dividends, if any,
redemption, conversion, and sinking fund terms, if any, voting or other rights,
if any, exercise price and detachability, if any, and other specific terms will
be set forth in a Prospectus Supplement (the "Prospectus Supplement"), together
with the terms of offering of such Securities.
If so specified in the applicable Prospectus Supplement, Debt Securities of
a series may be issued in whole or in part in the form of one or more temporary
or permanent global securities. The Prospectus Supplement will also contain
information, as applicable, about certain material United States Federal income
tax considerations relating to the particular Securities offered thereby.
The Common Stock is listed on the New York Stock Exchange under the symbol
"FWC." The Prospectus Supplement will also contain information, where
applicable, as to any other listing on a securities exchange of the Securities
covered by such Prospectus Supplement.
---------------------------
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 SUPPLEMENT OR THE ACCOMPANYING PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
---------------------------
The Securities may be sold directly to purchasers or through agents,
underwriters, including the underwriter listed below (the "Underwriters") or
dealers. The Prospectus Supplement applicable to each sale of Securities
hereunder will set forth the names of each such Underwriter, the proposed
amounts to be purchased by the Underwriters and the compensation of such
Underwriters. Pricing information and net proceeds to the Company from the sale
of such Securities will also be set forth in such Prospectus Supplement. See
"Plan of Distribution" herein.
---------------------------
LEHMAN BROTHERS
October 26, 1995
<PAGE> 3
NO PERSON HAS BEEN AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY
TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE
CONTAINED IN THIS PROSPECTUS OR ANY 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 OR AGENT. THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION
OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES
OR ANY OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN
ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL. NEITHER THE
DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE HEREUNDER
OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE
INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THE DATE HEREOF AND THEREOF.
<PAGE> 4
AVAILABLE INFORMATION
Foster Wheeler is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can 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 New York regional office
of the Commission, Seven World Trade Center, 13th Floor, New York, New York
10048. Copies of such material can be obtained at prescribed rates by writing to
the Commission, Public Reference Section, 450 Fifth Street, N.W., Washington,
D.C. 20549. Such material can also be inspected at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005.
This Prospectus constitutes part of a Registration Statement filed by
Foster Wheeler with the Commission under the Securities Act of 1933, as amended
(the "Act"). This Prospectus omits certain of the information contained in the
Registration Statement, and reference is hereby made to the Registration
Statement and to the exhibits thereto for further information with respect to
the Company and the Securities offered hereby. Any statements contained herein
concerning the provisions of any document 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 its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this Prospectus:
(a) the Company's Annual Report on Form 10-K (Commission File No. 1-286-2)
for the fiscal year ended December 30, 1994, as amended on Form 10-K/A,
dated October 23, 1995;
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1995 and its Quarterly Report on Form 10-Q for the quarter ended
June 30, 1995, as amended on Form 10-Q/A, dated October 23, 1995;
(c) the Company's Proxy Statement for the Annual Meeting of Stockholders on
April 25, 1995, filed with the Commission on March 17, 1995; and
(d) the Company's Current Report on Form 8-K, dated September 25, 1995 and
its Current Report on Form 8-K, dated October 12, 1995, as amended on
Form 8-K/A, dated October , 1995.
All documents filed by the Company pursuant to Section 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 Securities offered hereby shall be deemed to
be incorporated by reference to this Prospectus and to be a part hereof from the
date any such document is filed. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other document subsequently filed with the
Commission which also is or is deemed to be incorporated by reference herein or
in any Prospectus Supplement 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.
Foster Wheeler will provide without charge to each person to whom this
Prospectus has been delivered, upon written or oral request of such person, a
copy of any or all of the documents that are incorporated by reference herein,
other than exhibits to such documents (unless such exhibits are specifically
incorporated by reference into such documents). Requests for such copies should
be directed to Thomas R. O'Brien, Esq., General Counsel, Foster Wheeler
Corporation, Perryville Corporate Park, Clinton, New Jersey 08809, telephone
number (908) 730-4000.
2
<PAGE> 5
THE COMPANY
Foster Wheeler is a global company providing engineering services and
products to a broad range of industries through its Engineering and
Construction, Energy Equipment and Power Systems Groups. Primary industries
served by the Company include petroleum refining, petrochemicals, chemicals,
pharmaceuticals and power generation. The services provided include design,
engineering, construction, project development and management, research, plant
operations and environmental services. The products include pulverized coal
boilers and circulating fluidized bed steam generators, power generation
facilities, chemical separation equipment and fired heaters.
The executive offices of Foster Wheeler, a New York corporation organized
in 1900, are located at Perryville Corporate Park, Clinton, New Jersey 08809,
and the general telephone number is (908) 730-4000.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the periods indicated:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
SIX MONTHS ENDED -----------------------------------------
JUNE 30, 1995 1994 1993 1992 1991 1990
- ---------------- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C>
3.07 3.38 3.26 2.49 2.30 2.01
</TABLE>
The ratio of earnings to fixed charges was calculated based on information
from the Company's books and records. In computing the ratio of earnings to
fixed charges, earnings consist of net earnings/loss of the Company and its
consolidated subsidiaries, plus income taxes, plus, in 1992, the cumulative
effect of a change in accounting principle relating to the adoption of Statement
of Financial Accounting Standards No. 106, "Employers' Accounting for
Postretirement Benefits Other Than Pensions," plus fixed charges and capitalized
interest amortized, less capitalized interest and equity earnings of
non-consolidated associated companies accounted for by the equity method, net of
dividends. Fixed charges consist of interest costs on borrowed funds, including
capitalized interest, commitment fees, and a reasonable approximation of the
imputed interest on non-capitalized lease expense. There were no preferred
shares outstanding during any of the periods indicated and therefore the ratio
of earnings to combined fixed charges and preferred share dividend requirements
would have been the same as the ratio of earnings to fixed charges for each
period indicated.
USE OF PROCEEDS
Unless otherwise set forth in an accompanying Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Securities for
general corporate purposes, which may include repayment, reduction and/or
refinancing of existing indebtedness, including acquisition indebtedness,
working capital, capital expenditures and additional acquisitions.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities may be issued from time to time in one or more series
under an Indenture (the "Indenture"), between the Company and Harris Trust and
Savings Bank, as Trustee (the "Trustee"), a copy of the form of which is filed
as an exhibit to the Registration Statement. The following summaries of certain
provisions of the Debt Securities and the Indenture, as modified or superseded
by any applicable Prospectus Supplement, are brief summaries of certain
provisions thereof, do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all of the provisions of the
Indenture. Capitalized terms are defined in the Indenture unless otherwise
defined herein. Whenever any term defined therein is referred to, such
definition is incorporated herein by reference.
3
<PAGE> 6
GENERAL
The Indenture does not limit the amount of Debt Securities that may be
issued thereunder and provides that additional Debt Securities may be issued in
one or more series thereunder up to the aggregate principal amount that may be
authorized from time to time by the Company's Board of Directors. The Debt
Securities will be either unsecured senior obligations of the Company and will
rank equally and ratably with all other unsecured unsubordinated indebtedness of
the Company or subordinated to Senior Debt (as defined in the Indenture). The
Subordinated Debt Securities when issued will be subordinated in right of
payment to the prior payment in full of all Senior Debt of the Company as
described below under "Subordinated Debt" and in the Prospectus Supplement
applicable to an offering of Subordinated Debt Securities.
Reference is made to the Prospectus Supplement relating to the particular
Debt Securities offered thereby for the following terms, where applicable, of
the Debt Securities: (i) the specific designation of the Debt Securities; (ii)
the denominations in which such Debt Securities are authorized to be issued;
(iii) the aggregate principal amount of such Debt Securities; (iv) the date or
dates on which the principal of such Debt Securities will mature or the method
of determining such date or dates; (v) the price or prices (expressed as a
percentage of the aggregate principal amount thereof) at which the Debt
Securities will be issued; (vi) the rate or rates (which may be fixed or
variable) at which such Debt Securities will bear interest, if any, or the
method of calculating such rate or rates; (vii) the times and places where
principal of, premium, if any, and interest, if any, on such Debt Securities
will be payable; (viii) the date, if any, after which such Debt Securities may
be redeemed and the redemption prices; (ix) the date or dates on which interest,
if any, will be payable and the record date or dates therefor or the method by
which such date or dates will be determined; (x) the period or periods within
which, the price or prices at which, the currency or currencies (including
currency units) in which, and the terms and conditions upon which, such Debt
Securities may be redeemed, in whole or in part, at the option of the Company;
(xi) the obligation, if any, of the Company to redeem or purchase such Debt
Securities pursuant to any sinking fund or analogous provisions, upon the
happening of a specified event or at the option of a holder thereof and the
period or periods within which, the price or prices at which and the terms and
conditions upon which, such Debt Securities shall be redeemed or purchased, in
whole or in part, pursuant to such obligations; (xii) the terms and conditions,
if any, pursuant to which the Debt Securities are convertible or exchangeable
into Common Stock or Preferred Stock or other debt securities, including the
conversion or exchange price, the conversion or exchange period and other
conversion or exchange provisions; (xiii) the currency or currency units for
which such Debt Securities may be purchased or in which such Debt Securities may
be denominated and/or the currency or currency units in which principal of,
premium, if any, and/or interest, if any, on such Debt Securities will be
payable and whether the Company or the holders of any such Debt Securities may
elect to receive payments in respect of such Debt Securities in a currency or
currency units other than that in which such Debt Securities are stated to be
payable; (xiv) any index or formula used to determine the amount of payments of
principal of and premium, if any, and interest; (xv) if other than the principal
amount thereof, the portion of the principal amount of such Debt Securities that
will be payable upon declaration of the acceleration of the maturity thereof or
the method by which such portion shall be determined; (xvi) the person to whom
any interest on any such Debt Security shall be payable if other than the person
in whose name such Debt Security is registered on the applicable record date;
(xvii) any addition to, or modification or deletion of, any Event of Default or
any covenant of the Company specified in the Indenture with respect to such Debt
Securities; (xviii) the application, if any, of such means of defeasance or
covenant defeasance as may be specified for such Debt Securities; (xix) whether
such Debt Securities are to be issued in whole or in part in the form of one or
more temporary or permanent global securities and, if so, the identity of the
depositary for such global security or securities; and (xx) any other terms
pertaining to such Debt Securities not inconsistent with the provisions of the
Indenture. Debt Securities may also be issued under the Indenture upon the
exercise of Debt Warrants. See "Description of Warrants -- Debt Warrants."
Unless otherwise specified in the applicable Prospectus Supplement, the Debt
Securities will not be listed on any securities exchange.
Some of the Debt Securities may be issued at a discount (bearing no
interest or interest at below market rates) ("Discount Securities") to their
stated principal amount. United States Federal income tax consequences and other
special considerations applicable to any such Discount Securities or any Debt
Securities
4
<PAGE> 7
which are denominated in a currency or composite currency other than United
States dollars will be described in the applicable Prospectus Supplement.
Since the Company is a holding company, the rights of the Company, and
hence the right of creditors of the Company (including the holders of Debt
Securities), to participate in any distribution of the assets of any subsidiary
upon its liquidation or reorganization otherwise is necessarily subject to the
prior claims of creditors of any such subsidiary except to the extent that
claims of the Company itself as a creditor of the subsidiary may be recognized.
Unless otherwise indicated in the applicable Prospectus Supplement, the
covenants contained in the Indenture and the Debt Securities would not provide
for redemption at the option of a Holder nor necessarily afford Holders thereof
protection in the event of a highly leveraged or other transaction that may
adversely affect such Holders, except to the extent described under
"-- Consolidation, Merger and Sale of Assets." Such covenants may not be waived
or modified by the Company or its Board of Directors, although holders of Debt
Securities could waive or modify such covenants as more fully described below
under "-- Modification and Waiver."
CONVERSION OR EXCHANGE OF DEBT SECURITIES
If so indicated in the applicable Prospectus Supplement with respect to a
particular series of Debt Securities, such series will be convertible or
exchangeable into Common Stock, Preferred Stock or other debt securities on the
terms and conditions set forth therein. Such terms will include provisions as to
whether conversion is mandatory, at the option of the holder or at the option of
the Company, and may include provisions pursuant to which the number of shares
of Common Stock, Preferred Stock or other securities of the Company to be
received by the holders of Debt Securities would be calculated according to the
market price of Common Stock, Preferred Stock or other securities of the Company
as of a time stated in the Prospectus Supplement. The applicable Prospectus
Supplement will indicate restrictions on ownership that may apply in the event
of a conversion or exchange.
FORM, EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise specified in the applicable Prospectus Supplement, the
Debt Securities will be issued in fully registered form without coupons in
denominations set forth in the Prospectus Supplement. No service charge will be
made for any transfer or exchange of such Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. Where Debt Securities of any series are
issued in bearer form, the special restrictions and considerations, including
special offering restrictions and special United States Federal income tax
considerations, applicable to any such Debt Securities and to payment on and
transfer and exchange of such Debt Securities will be described in the
Prospectus Supplement. Bearer Debt Securities will be transferrable by delivery.
Unless otherwise provided in the applicable Prospectus Supplement,
principal and premium, if any, or interest, if any, will be payable and the Debt
Securities may be surrendered for payment or transferred at the offices of the
Trustee as paying and authenticating agent, provided that payment of interest on
registered securities may be made at the option of the Company by check mailed
to the address of the person entitled thereto as it appears in the Security
Register. Payment of Debt Securities in bearer form will be made at such paying
agencies outside of the United States as the Company may appoint.
BOOK-ENTRY 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 that will be deposited with, or on behalf
of, a depositary (the "Global Depositary"), or its nominee, identified in the
Prospectus Supplement relating to such series. In such a case, one or more
Global Securities will be issued in a denomination or aggregate denomination
equal to the portion of the aggregate principal amount of Outstanding Debt
Securities of the series to be represented by such Global Security or
Securities. Unless and until it is exchanged in whole or in part for Debt
Securities in definitive registered form, a Global Security may not be
registered for transfer or exchange except as a whole by the Global Depositary
for such
5
<PAGE> 8
Global Security to a nominee for such Global Depositary and except in the
circumstances described in the applicable Prospectus Supplement.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
and a description of the Global Depositary will be provided in the applicable
Prospectus Supplement.
CERTAIN COVENANTS OF THE COMPANY
Definitions
"Attributable Debt" is defined to mean as to any particular lease under
which any Person is at the time liable, at any date as of which the amount
thereof is to be determined, the total net amount of rent required to be paid by
such Person under such lease during the remaining primary term thereof,
discounted from the respective due dates thereof to such date at the rate of
interest per annum, compounded semi-annually, implicit in the terms of such
lease, as determined in good faith by the Company. The net amount of rent
required to be paid under any such lease for any such period shall be the amount
of the rent payable by the lessee with respect to such period, after excluding
amounts required to be paid on account of maintenance, repairs, insurance,
taxes, assessments, water rates and similar charges and contingent rents such as
those based on sales. In the case of any lease which is terminable by the lessee
upon the payment of a penalty, such net amount shall also include the amount of
such penalty, but shall not include any rent required to be paid under such
lease subsequent to the first date upon which it may be so terminated.
"Consolidated Net Tangible Assets" is defined to mean the aggregate amount
of assets after deducting (a) all current liabilities and (b) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense, and
other like intangibles, all as set forth on the most recently prepared balance
sheet of the Company and its consolidated Subsidiaries and computed in
accordance with United States generally accepted accounting principles.
"Debt" with respect to any Person is defined to mean (i) any debt (a) for
money borrowed, or (b) evidenced by a bond, note, debenture, or similar
instrument (including purchase money obligations) given in connection with the
acquisition of any business, property or assets, whether by purchase, merger,
consolidation or otherwise, but shall not include any account payable or other
obligation created or assumed by a Person in the ordinary course of business in
connection with the obtaining of materials or services, or (c) which is a direct
or indirect obligation which arises as a result of banker's acceptances; (ii)
any debt of others described in the preceding clause (i) which such Person has
guaranteed or for which it is otherwise directly liable; (iii) the obligation of
such Person as lessee under any lease of property which is reflected on such
Person's balance sheet as a capitalized lease; and (iv) any deferral, amendment,
renewal, extension, supplement or refunding of any liability of the kind
described in any of the preceding clauses (i), (ii) and (iii); provided,
however, that, in computing the Debt of any Person, there shall be excluded any
particular Debt if, upon or prior to the maturity thereof, there shall have been
deposited with a depository in trust money (or evidence of Debt if permitted by
the instrument creating such Debt) in the necessary amount to pay, redeem or
satisfy such Debt as it becomes due, and the amount so deposited shall not be
included in any computation of the assets of such Person.
"Existing Debt" is defined to mean all Debt outstanding on the date of
issuance of a particular series of Securities.
"Permitted Secured Debt" means all Debt (i) permitted under the covenant
described in "-- Limitation on Liens" and (ii) to which the covenant described
in "-- Limitation on Liens" is expressly inapplicable.
"Principal Property" is defined to mean any facility owned by the Company
or any Subsidiary, in each case, the gross book value of which on the date of
determination exceeds 1% of Consolidated Net Tangible Assets.
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<PAGE> 9
"Restricted Subsidiary" is defined to mean any Subsidiary of the Company
which owns, directly or indirectly, a Principal Property and any Subsidiary
which, in the opinion of the Board of Directors or any duly authorized committee
thereof, is of material importance to the Company.
"Senior Debt" is defined to mean the principal, premium, if any, unpaid
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not a claim
for post-filing interest is allowed in such proceeding), fees, charges,
expenses, reimbursement and indemnification obligations, and all other amounts
payable under or in respect of Debt of the Company, whether any such Debt exists
as of the date of the Indenture or is created, incurred, assumed or guaranteed
after such date, other than (i) Debt that by its terms or by operation of law is
subordinated to or on a parity with the Debt Securities and (ii) Debt owed to a
subsidiary or partnership of the Company.
"Subsidiary" is defined to mean a corporation of which securities having
ordinary voting power, in the absence of contingencies, to elect a majority of
directors, are owned directly or indirectly by the Company.
"Working Debt" means Debt incurred by subsidiaries of the Company organized
outside the United States for (i) working capital in the ordinary course of
business that is repayable within three years or (ii) hedging currency risk
relating to contracts with customers for the delivery of products and services
with proceeds segregated and identified and limited to investments and uses
designed to accomplish such purpose.
Limitation on Liens
The Company will not, and will not permit any Subsidiary to, incur, issue,
assume or guarantee any Debt secured after the date of the Indenture by pledge
of, or mortgage or other lien on ("Lien"), any Principal Property of the Company
or any Subsidiary, or any shares of stock or Debt of any Subsidiary without
effectively providing that the Debt Securities of all series issued pursuant to
the Indenture (together with, if the Company shall so determine, any other Debt
of the Company or such Subsidiary then existing or thereafter created which is
not subordinate to the Debt Securities) shall be secured equally and ratably
with (or, at the option of the Company, prior to) such secured Debt, so long as
such secured Debt shall be so secured, unless after giving effect thereto, the
aggregate principal amount of all such secured Debt then outstanding which would
otherwise be prohibited, plus all Attributable Debt of the Company and its
Subsidiaries in respect of sale and leaseback transactions (as defined in
"-- Restrictions on Sales and Leasebacks") occurring after the date of the
Indenture and existing at such time which would otherwise be prohibited by the
covenant described in "-- Restrictions on Sales and Leasebacks", would not
exceed 5% of Consolidated Net Tangible Assets. This restriction does not apply
to, and there shall be excluded in computing secured Debt for the purpose of
such restriction, Debt secured by:
(1) Liens on property, capital stock or Debt existing at the time of
acquisition thereof (including acquisition through merger or consolidation)
or to secure the payment of all or any part of the purchase price or
construction cost or commencement of operation thereof or to secure any
Debt incurred prior to, at the time of, or within 180 days after, the later
of the acquisition of such property or shares or Debt, the completion of
any such construction and the commencement of operation for the purpose of
financing all or any part of the purchase price or construction cost or
commencement of operation thereof, provided that any such Liens shall only
extend to the above-described property or property on which the above-
described property is situated;
(2) Liens on property of, or on any shares of stock or Debt of, any
corporation or other Person existing at the time such corporation becomes a
Restricted Subsidiary;
(3) Liens on property of, or on any shares of capital stock or Debt of
any corporation or other Person existing at the time such corporation or
other Person is merged into or consolidated with the Company or a
Restricted Subsidiary or at the time of sale, lease or other disposition of
all or substantially all the properties of a corporation or other Person to
the Company;
(4) Liens (a)(i) in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, or (ii)
in favor any other country, or any political subdivision thereof, to secure
partial, progress, advance or
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<PAGE> 10
other payments pursuant to any contract or statute, or (b)(i) for taxes,
assessments or governmental charges or levies in each case not then due and
delinquent or the validity of which is being contested in good faith by
appropriate proceedings, and (ii) for materialmen's, mechanics', carriers',
workmen's, repairmen's, landlord's or other like Liens, or deposits to
obtain the release of such Liens;
(5) Liens on any property or assets of any Restricted Subsidiary to
secure Debt owing by it to the Company or any other Restricted Subsidiary;
(6) Liens arising out of judgments or awards against the Company or
any subsidiary that the Company or such subsidiary is contesting in good
faith;
(7) Liens made in favor of any customer arising in the ordinary course
of business of the Company or any subsidiary in respect of payments made by
or on behalf of such customer for goods produced or services rendered to
such customer;
(8) Liens existing at the date of the Indenture;
(9) Liens created to secure the financing of cogeneration,
waste-to-energy or other operating or construction projects, but only to
the extent that the Debt associated with any such transaction is limited in
recourse to the assets, contractual rights and revenues of the particular
project being financed and any such Lien does not extend beyond the assets,
contractual rights and revenues of such project and the capital stock of
the corporation owning such project, and any extension, renewal, refunding,
replacement or refinancing (or successive extensions, renewals,
replacements, refundings or refinancings) as a whole or in part of any
Liens referred to in this clause (9); and
(10) Any extension, renewal, refunding or replacement (or successive
extensions, renewals, refundings or replacements), as a whole or in part,
of any Lien referred to in the foregoing clauses (1) through (3) and (8),
inclusive; provided, however, that (i) such extension, renewal, refunding
or replacement Lien shall be limited to all or a part of the same property,
shares of stock or Debt that secured the Lien extended, renewed, refunded
or replaced (plus improvements on such property) and (ii) the Debt secured
by such Lien at such time is not increased.
Restrictions on Sales and Leasebacks
The Company will not, and will not permit any Subsidiary to, enter into any
arrangement with any bank, insurance company or other lender or investor (not
including the Company or any Subsidiary) or to which any such lender or investor
is a party, providing for the leasing by the Company or any such Subsidiary of
any Principal Property which has been owned and operated by the Company or such
Subsidiary for more than 180 days and which has been sold or transferred by the
Company or such Subsidiary to such lender or investor or to any Person to whom
funds have been advanced by such lender or investor (each, a "sale and leaseback
transaction") unless, after giving effect thereto, the aggregate amount of all
Attributable Debt of the Company and its Subsidiaries in respect of such sale
and leaseback transactions occurring after the date of the Indenture and
existing at such time which would otherwise be prohibited under the covenant
described in "-- Restrictions on Sales and Leasebacks" plus all secured Debt
then outstanding of the Company and its Subsidiaries incurred after the date of
the Indenture which would otherwise be prohibited by the covenant described in
"-- Limitation on Liens", would not exceed 5% of Consolidated Net Tangible
Assets. This restriction does not apply to, and there shall be excluded from
Attributable Debt in any computation under such restriction, Attributable Debt
with respect to any sale and leaseback transaction under any of the following
circumstances:
(1) the lease in such sale and leaseback transaction is for a period,
including renewals, of not in excess of three years; or
(2) the property which is the subject of the sale and leaseback
transaction is property capable of being subject to a Lien described in
clauses (1), (2), (3), (8) or (9) in the covenant described in
"-- Limitation on Liens"; or
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(3) the Company or a Subsidiary, within 180 days after the sale or
transfer shall have been made by the Company or by any such Subsidiary,
applies an amount equal to the lesser of (i) Attributable Debt or (ii) the
net proceeds of any such sale or transfer to (i) the acquisition of other
Principal Property of equal fair market value (as determined by the Board
of Directors or any duly authorized committee thereof) or (ii) the
retirement of indebtedness for pari passu borrowed money (including
Securities of any Series).
Limitation on Debt Incurred by Restricted Subsidiaries
The Company will not permit any Restricted Subsidiary to directly or
indirectly, incur, assume or suffer to exist any Debt, unless, after giving
effect thereto, the aggregate amount of then outstanding Debt incurred by all
Restricted Subsidiaries, excluding all Secured Debt and Attributable Debt in
respect of sale and leaseback transactions, shall not exceed 10% of Consolidated
Net Tangible Assets. The immediately preceding sentence shall not apply to the
incurrence or issuance of (a) Existing Debt, (b) Working Debt, (c) Debt of a
Restricted Subsidiary which represents the assumption by such Restricted
Subsidiary of Debt of another Restricted Subsidiary as a result of the merger or
acquisition of such Restricted Subsidiary, (d) Debt of any corporation existing
at the time such corporation becomes a Restricted Subsidiary and (e) Permitted
Secured Debt.
EVENTS OF DEFAULT
The following are Events of Default with respect to Debt Securities of each
series:
(1) default in the payment of any installment of interest, if any,
upon any of the Debt Securities of such series as and when it shall become
due and payable, and continuance of such default for a period of 30 days;
or
(2) default in the payment of the principal of, or any premium on, any
of the Debt Securities of such series as and when the same shall become due
and payable either at Stated Maturity, upon redemption, by declaration or
otherwise; or
(3) default in the payment of any sinking fund payment, when and as
due and payable by the terms of the Debt Securities of such series; or
(4) default in the performance, or breach, of any covenant of the
Company in the Indenture or the Debt Securities of such series (other than
a covenant a default in the performance or a breach of which is otherwise
specified as an Event of Default or which has expressly been included in
the Indenture and designated as being solely for the benefit of such series
of Debt Securities other than such series), and continuance of such default
or breach for a period of 90 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the Debt
Securities of such series then outstanding, a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" under the Indenture; or
(5) default resulting in acceleration of or failure to pay at maturity
(i) other Debt of the Company or Debt that the Company has guaranteed where
the aggregate principal amount so accelerated exceeds $15 million or (ii)
Debt of any Subsidiary which the Company has directly assumed or on which
the Company has otherwise become directly liable as a result of the
exercise of remedies upon the occurrence of a default by such Subsidiary in
the performance of its obligations under any agreement guaranteed by the
Company in a principal amount of $15 million or more; without such
involuntary acceleration having been rescinded or annulled within a period
of 30 days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in aggregate principal amount of the Debt
Securities of such series then Outstanding a written notice specifying such
default and requiring the Company to cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of Default"
under the Indenture; provided, however, that, if such default shall be
remedied or cured by the Company or waived by the holders of such
indebtedness before any judgement or decree for the payment of money due
shall have been obtained or
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entered, then the Event of Default under the Indenture by reason thereof
shall be deemed likewise to have been thereupon remedied, cured or waived
without any action on the part of the Trustee or any of the holders; or
(6) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law then or thereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Company or for all or
substantially all of its property or ordering the winding up or liquidation
of its affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(7) the Company shall commence a voluntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law then or thereafter in effect, or consent to the entry of
an order for relief in an involuntary case under any such law, or consent
to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the
Company or for all or substantially all of its property, or make any
general assignment for the benefit of creditors; or
(8) any other Event of Default provided with respect to Debt
Securities of such series.
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding occurs and is continuing, then, and in each and every such
case, unless the principal of all of the Debt Securities of such series shall
have already become due and payable, either the Trustee or the holders of not
less than 25% in aggregate principal amount of the Debt Securities of such
series then outstanding, by notice in writing to the Company (and to the Trustee
if given by Holders), may declare the entire principal amount (or, if the Debt
Securities of such series are Discount Securities (as defined in the Indenture),
such portion of the principal as may be specified in the terms of such series)
of all of the Debt Securities of such series and any premium and interest
accrued thereon to be due and payable immediately, and upon any such declaration
such principal amount (or specified amount) and any premium and interest accrued
thereon shall become immediately due and payable.
However, at any time after a declaration of acceleration with respect to
Debt Securities of any series has been made, but before a judgment or decree
based on such acceleration has been obtained, the Holders of a majority in
principal amount of Outstanding Debt Securities of that series may, under
certain circumstances, rescind and annul such acceleration. See also
"-- Modification and Waiver."
Reference is made to the Prospectus Supplement relating to each series of
Debt Securities which are Discount Securities for the particular provisions
relating to acceleration of the Maturity of a portion of the principal amount of
such Discount Securities upon the occurrence of an Event of Default and the
continuation thereof.
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. Subject to such provisions for
indemnification of the Trustee, the Holders of a majority in principal amount of
the Outstanding Debt Securities of any series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Debt Securities of that series.
The Company is required to furnish to the Trustee annually a statement as
to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance.
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with the consent of the Holders of a majority in principal
amount of the Outstanding Debt Securities of each series affected thereby (each
such series voting as a single class); provided, however, that no such
modification or
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amendment may, without the consent of the Holder of each Outstanding Security
affected thereby, (a) change the Stated Maturity of the principal, or any
installment of principal of or interest on, any Debt Security, (b) reduce the
principal amount thereof, or reduce any premium thereof or change the time of
payment of any premium thereon, (c) reduce the rate or change the time of
payment of interest thereon, if any, (d) reduce any amount payable on redemption
of any such Security (if any), (e) reduce the Overdue Rate thereof, (f) change
the place or currency of payment of principal of, or any premium or interest
thereon, (g) reduce the amount of principal of any Discount Security payable
upon acceleration of the Maturity thereof or the amount thereof provable in
bankruptcy, (h) impair, if applicable, any right of repayment at the option of
the Holder, (i) impair the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security, or (j) reduce the percentage in
principal amount of Outstanding Debt Securities of any series, the consent of
the Holders of which is required for modification or amendment of the Indenture
or for waiver of compliance with certain provisions of the Indenture or for
waiver of certain defaults, or (k) alter or impair the right of any Holder to
convert or exchange Securities of any series, if applicable, at the rate and
upon the terms established pursuant to the Indenture.
The Holders of a majority in aggregate principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all Debt Securities of
that series waive, insofar as that series is concerned, compliance by the
Company with certain restrictive provisions of the Indenture. The Holders of a
majority in principal amount of the Outstanding Securities of any series may, on
behalf of the Holders of all Debt Securities of that series, direct the Trustee
as to the time, method and place of pursuing any remedy available to it or
exercising any trust or power conferred on it and may waive any past default
under the Indenture with respect to Debt Securities of that series, except a
default not theretofore cured in the payment of the principal of (or premium, if
any) or interest on any Debt Securities of that series or in respect of any
provision which under the Indenture cannot be modified or amended without the
consent of the Holder of each Outstanding Security of that series affected.
The Indenture contains provisions permitting the Company and the Trustee to
enter into one or more supplemental indentures without the consent of the
Holders of any of the Debt Securities in order (i) to evidence the succession of
another corporation to the Company and the assumption of the covenants of the
Company by a successor to the Company; (ii) to add to the covenants of the
Company or surrender any right or power of the Company; (iii) to add additional
Events of Default with respect to any series of Debt Securities; (iv) to add to,
change or eliminate any provision affecting Debt Securities not yet issued; (v)
to secure the Debt Securities; (vi) to establish the form or terms of Debt
Securities; (vii) to evidence and provide for a successor Trustee; and (viii) to
cure any ambiguity or correct any mistake or to correct any defect or supplement
any inconsistent provisions or to make any other provisions with respect to
matters or questions arising under the Indenture, provided that such action does
not adversely affect the interests of any Holder of Debt Securities of any
series.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate or merge with or into, or transfer or lease
all or substantially all its assets to, any Person, and any other Person may not
consolidate or merge with or into, the Company, unless (i) the Person (if other
than the Company) formed by such consolidation or into which the Company is
merged or which acquires or leases all or substantially all the assets of the
Company is organized and existing under the laws of the United States, any state
thereof or the District of Columbia and expressly assumes all of the Company's
obligations under the Debt Securities and under the Indenture, (ii) immediately
after giving effect to such transaction no Event of Default, and no event which,
after notice or lapse of time or both, would become an Event of Default, shall
have happened and be continuing (provided that a transaction will only be deemed
to be in violation of this condition (ii) as to any series of Debt Securities as
to which such Event of Default or such event shall have occurred and be
continuing), and (iii) certain other conditions are met.
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SATISFACTION, DISCHARGE, AND DEFEASANCE PRIOR TO MATURITY OR REDEMPTION
Covenant Defeasance of any Series
If the Company shall deposit with the Trustee, in trust, at or before
maturity or redemption of the Debt Securities of any series, money and/or
Government Obligations in such amounts and maturing at such times such that the
proceeds of such obligations to be received upon the respective maturities and
interest payment dates of such obligations will provide funds sufficient,
without reinvestment, in the opinion of a nationally recognized firm of
independent public accountants, to pay when due the principal of (and premium,
if any) and each installment of principal of (and premium, if any) and interest
on such series of Debt Securities at the Stated Maturity of such principal or
installment of principal or interest, as the case may be, then the Company may
omit to comply with certain of the terms of the Indenture with respect to that
series of Debt Securities, including any or all of the restrictive covenants
described above or in any Prospectus Supplement, and the Events of Default
described in clauses (4) and (5) under "Events of Default" shall not apply.
Defeasance of Debt Securities of any series is subject to the satisfaction of
certain conditions, including among others: (1) the absence of an Event of
Default or event which, with notice or lapse of time, would become an Event of
Default at the date of the deposit, (2) the delivery to the Trustee by the
Company of an Opinion of Counsel to the effect that Holders of the Debt
Securities of such series will not recognize income, gain or loss for United
States Federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to United States Federal income tax in the same
amounts and in the same manner and at the same times as would have been the case
if such deposit and covenant defeasance had not occurred, (3) such covenant
defeasance will not cause any Debt Securities of such series then listed on any
nationally recognized securities exchange to be delisted, (4) that such covenant
defeasance will not result in a breach of, or constitute a default under, any
instrument by which the Company is bound and (5) such covenant defeasance shall
not cause the Trustee for the Securities of such series to have a "conflicting
interest" for purposes of the Trust Indenture Act with respect to any securities
of the Company. If indicated in the Prospectus Supplement relating to a series
of Debt Securities, in addition to the obligations of the United States of
America or obligations guaranteed by the United States of America, Government
Obligations may include obligations of the government, and obligations
guaranteed by such government, issuing the currency or currency unit in which
Debt Securities of such series are payable.
Defeasance of any Series
Upon the deposit of money or securities as contemplated in the preceding
paragraph and the satisfaction of certain other conditions, the Company may also
omit to comply with its obligation duly and punctually to pay the principal of
(and premium, if any) and interest on a particular series of Debt Securities,
and any Events of Default with respect thereto shall not apply, and thereafter,
the Holders of Debt Securities of such series shall be entitled only to payment
out of the money or securities deposited with the Trustee. Such conditions
include among others: (1) the absence of an Event of Default or event which,
with notice or lapse of time, would become an Event of Default at the date of
the deposit, (2) the delivery to the Trustee by the Company of an Opinion of
Counsel, which refers to or is based on a ruling of the Internal Revenue Service
or a change in the applicable United States Federal income tax law occurring
after the date of the Indenture, to the effect that Holders of the Debt
Securities of such series will not recognize income, gain or loss for United
States Federal income tax purposes as a result of such deposit and the
satisfaction, discharge and defeasance, and will be subject to United States
Federal income tax in the same amounts and in the same manner and at the same
times as would have been the case if such deposit and defeasance had not
occurred, (3) such defeasance will not cause any Debt Securities of such series
then listed on any nationally recognized securities exchange to be delisted, (4)
that such defeasance will not result in a breach of, or constitute a default
under, any instrument by which the Company is bound and (5) such defeasance
shall not cause the Trustee for the Securities of such series to have a
conflicting interest for the purpose of the Trust Indenture Act with respect to
any securities of the Company.
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SENIOR DEBT
The Debt Securities that will be designated and will constitute part of the
Senior Debt of the Company, will rank pari passu with all other unsecured and
unsubordinated debt of the Company.
SUBORDINATED DEBT
The Debt Securities may be subordinated and junior in right of payment, to
the extent set forth in the applicable Prospectus Supplement, to all Senior
Debt.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
REGARDING THE TRUSTEE
Harris Trust and Savings Bank is the Trustee under the Indenture and has
been appointed by the Company as initial Security Registrar and Paying Agent
with regard to the Debt Securities. The Company has customary banking
relationships with the Trustee and certain of its affiliates in the ordinary
course of business.
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DESCRIPTION OF CAPITAL STOCK
GENERAL
The following description of the Company's capital stock does not purport
to be complete and is subject to, and qualified in its entirety by reference to,
the more complete descriptions thereof set forth in the Company's Restated
Certificate of Incorporation, as amended (the "Certificate"), and By-laws, as
amended (the "By-laws") which documents are exhibits to this Registration
Statement.
The Company is authorized to issue up to 80,000,000 shares of Common Stock,
par value $1.00, and up to 1,500,000 shares of Preferred Stock, no par value. As
of June 30, 1995 there were 35,857,427 shares of Common Stock and no shares of
Preferred Stock outstanding. Of the 1,500,000 shares of authorized Preferred
Stock, 400,000 shares have been reserved and designated as "Series A Junior
Participating Preferred Stock."
PREFERRED STOCK
General. The following summary contains a description of certain general
terms of the Company's Preferred Stock. The particular terms of any series of
Preferred Stock that may be offered will be described in the applicable
Prospectus Supplement. If so indicated in a Prospectus Supplement, the terms of
any such series may differ from the terms set forth below. The summary of terms
of the Company's Preferred Stock does not purport to be complete and is subject
to and qualified in its entirety by reference to the provisions of the Company's
Certificate and the Certificate of Designation (the "Certificate of
Designation") relating to a particular series of offered Preferred Stock which
is or will be in the form filed or incorporated by reference as an exhibit to
the Registration Statement of which this Prospectus is a part at or prior to the
time of the issuance of such series of Preferred Stock.
The Board of Directors of the Company has the power, without further action
by the shareholders, to issue Preferred Stock in one or more series, with such
designations or titles, dividend rates, redemption provisions, special or
relative rights in the event of liquidation, dissolution, distribution or
winding up of the Company, sinking fund provisions, conversion provisions,
voting rights thereof and other preferences, privileges, powers, rights,
qualifications, limitations and restrictions, as shall be set forth as and when
established by the Board of Directors of the Company; provided that, the Board
of Directors shall fix such provisions as will, at a minimum, entitle the
holders of such Preferred Stock, voting as a class, to elect at least two
directors upon default of the equivalent of six quarterly dividends, such right
to continue until cumulative dividends have been paid in full, or until
non-cumulative dividends have been paid regularly for at least a year, and
require the affirmative approval of at least two-thirds of the outstanding
Preferred Stock as a prerequisite to any amendment to the Certificate or By-laws
altering materially any existing provision of such Preferred Stock. The shares
of any series of Preferred Stock will be, when issued, fully paid and
non-assessable and holders thereof will have no preemptive rights in connection
therewith.
Rank. Any series of Preferred Stock will, with respect to rights on
liquidation, winding up and dissolution, rank (i) senior to all classes of
Common Stock and to all equity securities issued by the Company, the terms of
which specifically provide that such equity securities will rank junior to such
series of Preferred Stock (the "Junior Liquidation Securities"); (ii) on a
parity with all equity securities issued by the Company, the terms of which
specifically provide that such equity securities will rank on a parity with such
series of Preferred Stock ("Parity Liquidation Securities"); and (iii) junior to
all equity securities issued by the Company, the terms of which specifically
provide that such equity securities will rank senior to such series of Preferred
Stock (the "Senior Liquidation Securities"). In addition, any series of
Preferred Stock will, with respect to dividend rights, rank (i) senior to all
equity securities issued by the Company, the terms of which specifically provide
that such equity securities will rank junior to such series of Preferred Stock
and, to the extent provided in the applicable Certificate of Designation, to
Common Stock; (ii) on a parity with all equity securities issued by the Company,
the terms of which specifically provide that such equity securities will rank on
a parity with such series of Preferred Stock and, to the extent provided in the
applicable Certificate of Designation, to Common Stock ("Parity Dividend
Securities"); and (iii) junior to all equity securities issued by the Company,
the terms of which specifically provide that such equity securities will rank
senior to such
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series of Preferred Stock. As used in any Certificate of Designation for these
purposes, the term "equity securities" will not include debt securities
convertible into or exchangeable for equity securities.
Dividends. Holders of each series of Preferred Stock will be entitled to
receive, when, as and if declared by the Board of Directors of the Company out
of funds legally available therefor, cash dividends at such rates and on such
dates as are set forth in the Prospectus Supplement relating to such series of
Preferred Stock. Dividends will be payable to holders of record of Preferred
Stock as they appear on the books of the Company (or, if applicable, the records
of the Depositary referred to below under "-- Depositary Shares") on such record
dates as shall be fixed by the Board of Directors. Dividends on any series of
Preferred Stock may be cumulative or non-cumulative.
No full dividends may be declared or paid out of funds set apart for the
payment of dividends on any series of Preferred Stock unless dividends shall
have been paid or set apart for such payment on the Parity Dividend Securities.
If full dividends are not so paid, such series of Preferred Stock shall share
dividends pro rata with the Parity Dividend Securities.
Conversion and Exchange. The Prospectus Supplement for any series of
Preferred Stock will state the terms, if any, on which shares of that series are
convertible into shares of another series of Preferred Stock or Common Stock or
exchangeable for another series of Preferred Stock, Common Stock or Debt
Securities of the Company.
Redemption. A series of Preferred Stock may be redeemable at any time, in
whole or in part, at the option of the Company or the holder thereof and may be
subject to mandatory redemption pursuant to a sinking fund or otherwise upon
terms and at the redemption prices set forth in the Prospectus Supplement
relating to such series.
In the event of partial redemptions of Preferred Stock, whether by
mandatory or optional redemption, the shares to be redeemed will be determined
by lot or pro rata, as may be determined by the Board of Directors of the
Company, or by any other method determined to be equitable by the Board of
Directors.
On and after a redemption date, unless the Company defaults in the payment
of the redemption price, dividends will cease to accrue on shares of Preferred
Stock called for redemption and all rights of holders of such shares will
terminate except for the right to receive the redemption price.
Liquidation Preference. Upon any voluntary or involuntary liquidation,
dissolution or winding up of the Company, holders of each series of Preferred
Stock that ranks senior to the Junior Liquidation Securities will be entitled to
receive out of assets of the Company available for distribution to shareholders,
before any distribution is made on any Junior Liquidation Securities, including
Common Stock, distributions upon liquidation in the amount set forth in the
Prospectus Supplement relating to such series of Preferred Stock. If the holders
of the Preferred Stock of any series and any other Parity Liquidation Securities
are not paid in full, the holders of the Preferred Stock of such series and the
Parity Liquidation Securities will share ratably in any such distribution of
assets of the Company in proportion to the full liquidation preferences to which
each is entitled. After payment of the full amount of the liquidation preference
to which they are entitled, the holders of such series of Preferred Stock will
not be entitled (unless the applicable Prospectus Supplement indicates
otherwise) to any further participation in any distribution of assets of the
Company. The liquidation preference of any series of Preferred Stock is not
necessarily indicative of the price at which shares of such series of Preferred
Stock will actually trade at or after the time of their issuance.
Voting Rights. Except as indicated in the Prospectus Supplement relating
to a particular series of Preferred Stock as specified in the third paragraph
under "-- General" above, or except as expressly required by applicable law or
the Certificate, the holders of shares of Preferred Stock will have no voting
rights.
Preferred Share Purchase Rights. On September 22, 1987, the Corporation's
Board of Directors declared a dividend distribution of one Preferred Share
Purchase Right (a "Right") on each share of the Company's Common Stock
outstanding as of October 2, 1987. Each Right allows the shareholder to purchase
1/100th of a share of a new series of preferred stock of the Company at an
exercise price of $75. Rights are exercisable only if a person or group acquires
20% or more of the Common Stock or announces a tender offer
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the consummation of which would result in ownership by a person or group of 20%
or more of the Common Stock. The Rights, which do not have the right to vote or
receive dividends, expire on October 2, 1997 and may be redeemed, prior to
becoming exercisable, by the Board of Directors at $.02 per Right or by
shareholder action with an acquisition proposal. In connection with such
dividend, 400,000 shares of Preferred Stock reserved and designated as "Series A
Junior Participating Preferred Stock" were authorized for issuance.
If any person or group acquires 20% or more of the outstanding Common
Stock, the "flip-in" provision of the Rights will be triggered and the Rights
will entitle a holder (other than such person or any member of such group) to
acquire a number of additional shares of the Corporation's common stock having a
market value of twice the exercise price of each Right.
In the event the Company is involved in a merger or other business
combination transaction, each Right will entitle its holder to purchase, at the
Right's then current exercise price, a number of the acquiring company's common
stock having a market value at that time of twice the Rights' exercise price.
The existence of the Rights Plan and the Rights may, under certain
circumstances discourage, delay or prevent a change in control of the Company.
DEPOSITARY SHARES
The description set forth below of certain provisions of the Deposit
Agreement (as defined below) and of the Depositary Shares and Depositary
Receipts (as defined below) does not purport to be complete and is subject to
and qualified in its entirety by reference to the forms of Deposit Agreement and
Deposit Receipt, included as exhibits to the Registration Statement of which
this Prospectus is a part.
General. The Company may, at its option, elect to offer fractional shares
of Preferred Stock, rather than full shares of Preferred Stock. In the event the
Company so elects, the Depositary will issue receipts for Depositary Shares,
each of which will represent a fraction (to be set forth in the Prospectus
Supplement relating to a particular series of Preferred Stock) of a share of a
particular series of Preferred Stock as described below.
The shares of any series of Preferred Stock represented by Depositary
Shares will be deposited under a Deposit Agreement (the "Deposit Agreement")
between the Company and a depositary that is a bank or trust company having its
principal offices in the United States and having a combined capital surplus of
at least the amount set forth in the Deposit Agreement (the "Depositary").
Subject to the terms of the Deposit Agreement, each owner of a Depositary Share
will be entitled, in proportion to the applicable fraction of a share of
Preferred Stock represented by such Depositary Share, to all the rights and
preferences of the Preferred Stock represented thereby (including dividend,
voting, redemption, conversion and liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement (the "Depositary Receipts"). The Depositary
Receipts will be distributed to those persons purchasing the fractional shares
of Preferred Stock in accordance with the terms of the offering.
Pending the preparation of definitive Depositary Receipts, the Depositary
shall, upon the written order of the Company or any holder of deposited
Preferred Stock, execute and deliver temporary Depositary Receipts which are
substantially identical to, and entitle the holders thereof to all the rights
pertaining to, the definitive Depositary Receipts. Depositary Receipts will be
prepared thereafter without unreasonable delay, and temporary Depositary
Receipts will be exchangeable for definitive Depositary Receipts at the
Company's expense.
Dividends and Other Distributions. The Depositary will distribute all cash
dividends or other cash distributions received in respect of the deposited
Preferred Stock to the record holders of the Depositary
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<PAGE> 19
Shares relating to such Preferred Stock in proportion to the number of such
Depositary Shares owned by such holders.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto. If the Depositary determines that it is not feasible to make
such distribution, it may, with the approval of the Company, sell such property
and distribute the net proceeds from such sale to such holders.
Redemption of Stock. If a series of Preferred Stock represented by
Depositary Shares is to be redeemed, the Depositary Shares will be redeemed from
the proceeds received by the Depositary resulting from the redemption, in whole
or in part, of such series of Preferred Stock held by the Depositary. The
Depositary Shares will be redeemed by the Depositary at a price per Depositary
Share equal to the applicable fraction of the redemption price per share payable
in respect of the shares of Preferred Stock so redeemed. If fewer than all the
Depositary Shares will be redeemed, the Depositary Shares to be redeemed will be
selected by the Depositary by lot or pro rata or by any other equitable method
as may be determined by the Depositary.
Voting Deposited Preferred Stock. Upon receipt of notice of any meeting at
which the holders of any series of deposited Preferred Stock are entitled to
vote, the Depositary will mail the information contained in such notice of
meeting to the record holders of the Depositary Shares relating to such series
of Preferred Stock. Each record holder of such Depositary Shares on the record
date (which will be the same date as the record date for the relevant series of
Preferred Stock) will be entitled to instruct the Depositary as to the exercise
of the voting rights pertaining to the amount of the Preferred Stock represented
by such holder's Depositary Shares. The Depositary will endeavor, insofar as
practicable, to vote the amount of such series of Preferred Stock represented by
such Depositary Shares in accordance with such instructions, and the Company
will agree to take all reasonable actions that may be deemed necessary by the
Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting shares of the Preferred Stock to the extent it does not
receive specific instructions from the holder of Depositary Shares representing
such Preferred Stock.
Amendment and Termination of the Deposit Agreement. The form of the
Depositary Receipt evidencing the Depositary Shares and any provision of the
Deposit Agreement may at any time be amended by agreement between the Company
and the Depositary. However, any amendment which materially prejudices any
substantial right of the holders of the Depositary Shares representing Preferred
Stock of any series will not be effective unless such amendment has been
approved by the record holders of a majority of the Depositary Shares then
outstanding. Every holder of an outstanding Depositary Receipt at the time any
such amendment becomes effective shall be deemed, by continuing to hold such
Depositary Receipt to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. The Deposit Agreement may be terminated by
the Company or by the Depositary only after (i) all outstanding Depositary
Shares have been redeemed; or (ii) each share of Preferred Stock has been
converted into other Preferred Stock or Common Stock or has been exchanged for
Debt Securities; or (iii) there has been a final distribution in respect of the
Preferred Stock in connection with any liquidation, dissolution or winding up of
the Company and such distribution has been distributed to the holders of
Depositary Shares.
Charges of Depositary. The Company will pay all transfer and other taxes
and governmental charges arising solely from the existence of the depositary
arrangements. The Company will pay all charges of the Depositary in connection
with the initial deposit of the relevant series of Preferred Stock and any
redemption of such Preferred Stock. Holders of Depositary Receipts will pay
other transfer and other taxes and governmental charges and such other charges
or expenses as are expressly provided in the Deposit Agreement to be for their
accounts.
Resignation and Removal of Depositary. The Depositary may resign at any
time by delivering to the Company notice of its election to do so, and the
Company may at any time remove the Depositary, any such resignation or removal
to take effect upon the appointment of a successor Depositary and its acceptance
of such appointment. Such successor Depositary must be appointed within 60 days
after delivery of the notice of resignation or removal and must be a bank or
trust company having its principal office in the United States and having a
combined capital and surplus of at least the amount set forth in the Deposit
Agreement.
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<PAGE> 20
Miscellaneous. The Depositary will forward all reports and communications
from the Company that are delivered to the Depositary and that the Company is
required to furnish to the holders of the deposited Preferred Stock.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstances beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Depositary under
the Deposit Agreement will be limited to performance in good faith of its duties
thereunder, and it will not be obligated to prosecute or defend any legal
proceeding in respect of any Depositary Shares, Depositary Receipts or shares of
Preferred Stock unless satisfactory indemnity is furnished. The Depositary may
rely upon written advice of counsel or accountants, or upon information provided
by holders of Depositary Receipts or other persons believed to be competent and
on documents believed to be genuine.
COMMON STOCK
Each holder of Common Stock is entitled to one vote for each share owned of
record on all matters voted upon by shareholders, and a majority vote is
required for all action to be taken by shareholders except for certain
transactions described in the Company's Restated Certificate of Incorporation
and in the New York Business Corporation Law. See "Corporate Provisions." In the
event of a liquidation, dissolution or winding-up of the Company, the holders of
Common Stock are entitled to share equally and ratably in the assets of the
Company, if any, remaining after the payment of all debts and liabilities of the
Company and the liquidation preference of any outstanding Preferred Stock. The
holders of the Common Stock have no preemptive rights or cumulative voting
rights and there are no redemption, sinking fund or conversion provisions
applicable to the Common Stock.
Holders of Common Stock are entitled to receive dividends if, as and when
declared by the Board of Directors out of funds legally available for such
purpose, subject to the dividend and liquidation rights of any Preferred Stock
that may be issued and subject to restrictions and limitations that may be
contained in the Company's loan agreements. See "-- Preferred Stock -- Preferred
Share Purchase Rights."
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<PAGE> 21
DESCRIPTION OF WARRANTS
GENERAL
The Company may issue together with other Securities or separately,
warrants for the purchase of (i) Debt Securities ("Debt Warrants"), (ii) Common
Stock ("Common Stock Warrants") or (iii) Preferred Stock ("Preferred Stock
Warrants"). The Company may also issue, together with Debt Securities or Debt
Warrants or separately, currency warrants ("Currency Warrants" and together with
Debt Warrants, Common Stock Warrants, the "Warrants") either in the form of
Currency Put Warrants or Currency Call Warrants (as defined below).
The Warrants are to be issued under Warrant Agreements to be entered into
between the Company and a bank or trust company, as agent, all to be set forth
in the applicable Prospectus Supplement relating to any or all Warrants in
respect of which this Prospectus is being delivered. Copies of the form of
agreement for each warrant, including the forms of certificates representing the
Warrants reflecting the provisions to be included in such agreements that will
be entered into with respect to particular offerings of each type of warrant are
filed as exhibits to the Registration Statement of which this Prospectus forms a
part.
The following summaries of certain provisions of the Warrant Agreements and
Warrant Certificates do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all the provisions of each Warrant
Agreement and Warrant Certificate, respectively, including the definitions
therein of certain capitalized terms not defined herein.
DEBT WARRANTS
General. Reference is made to the applicable Prospectus Supplement for the
terms of Debt Warrants in respect of which this Prospectus is being delivered,
the Debt Warrant Agreement relating to such Debt Warrants and the Debt Warrant
Certificates representing such Debt Warrants, including the following: (1) the
designation, aggregate principal amount and terms of the Debt Securities
purchasable upon exercise of such Debt Warrants and the procedures and
conditions relating to the exercise of such Debt Warrants; (2) the designation
and terms of any related Debt Securities with which such Debt Warrants are
issued and the number of such Debt Warrants issued with each such Debt Security;
(3) the date, if any, on and after which such Debt Warrants and the related Debt
Securities will be separately transferable; (4) the principal amount of Debt
Securities purchasable upon exercise of each Debt Warrant and the price at which
such principal amount of Debt Securities may be purchased upon such exercise;
(5) the date on which the right to exercise such Debt Warrants shall commence
and the date on which such right shall expire; (6) if the Debt Securities
purchasable upon exercise of such Debt Warrants are original issue discount Debt
Securities, a discussion of United States Federal income tax considerations
applicable thereto; and (7) whether the Debt Warrants represented by the Debt
Warrant Certificates will be issued in registered or bearer form, and, if
registered, where they may be transferred and registered.
Debt Warrant Certificates will be exchangeable for new Debt Warrant
Certificates of different denominations and Debt Warrants may be exercised at
the corporate trust office of the Debt Warrant Agent or any other office
indicated in the applicable Prospectus Supplement. Prior to the exercise of
their Debt Warrants, holders of Debt Warrants will not have any of the rights of
holders of the Debt Securities purchasable upon such exercise and will not be
entitled to payments of principal of (and premium, if any) or interest, if any,
on the Debt Securities purchasable upon such exercise.
Exercise of Debt Warrants. Each Debt Warrant will entitle the holder to
purchase for cash such principal amount of Debt Securities at such exercise
price as shall in each case be set forth in, or be determinable as set forth in,
the applicable Prospectus Supplement relating to the Debt Warrants offered
thereby. Debt Warrants may be exercised at any time up to 5:00 p.m. New York
City time on the expiration date set forth in the applicable Prospectus
Supplement. After 5:00 p.m. New York City time on the expiration date,
unexercised Debt Warrants will become void.
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<PAGE> 22
Debt Warrants may be exercised as set forth in the applicable Prospectus
Supplement relating to the Debt Warrants. Upon receipt of payment and the Debt
Warrant Certificate properly completed and duly executed at the corporate trust
office of the Debt Warrant Agent or any other office indicated in the applicable
Prospectus Supplement, the Company will, as soon as practicable, forward the
Debt Securities purchasable upon such exercise. If less than all of the Debt
Warrants represented by such Debt Warrant Certificate are exercised, a new Debt
Warrant Certificate will be issued for the remaining amount of Debt Warrants.
COMMON STOCK WARRANTS
General. Reference is made to the applicable Prospectus Supplement for the
terms of Common Stock Warrants in respect of which this Prospectus is being
delivered, the Common Stock Warrant Agreement relating to such Common Stock
Warrants and the Common Stock Warrant Certificates representing such Common
Stock Warrants, including the following: (1) the offering price of such Common
Stock Warrants, if any; (2) the procedures and conditions relating to the
exercise of such Common Stock Warrants; (3) the number of shares of Common Stock
purchasable upon exercise of each Common Stock Warrant and the initial price at
which such shares may be purchased upon exercise; (4) the date on which the
right to exercise such Common Stock Warrants shall commence and the date on
which such right shall expire; (5) a discussion of United States Federal income
tax considerations applicable to the exercise of Common Stock Warrants; (6) call
provisions of such Common Stock Warrants, if any; and (7) any other terms of the
Common Stock Warrants.
Prior to the exercise of their Common Stock Warrants, holders of the Common
Stock Warrants will not have any of the rights of holders of Common Stock
purchasable upon such exercise, and will not be entitled to any dividend
payments on the Common Stock purchasable upon such exercise.
Exercise of Common Stock Warrants. Each Common Stock Warrant will entitle
the holder to purchase for cash such number of shares of Common Stock at such
exercise price as shall in each case be set forth in, or be determinable as set
forth in, the applicable Prospectus Supplement relating to the Common Stock
Warrants offered thereby. Unless otherwise specified in the applicable
Prospectus Supplement, Common Stock Warrants may be exercised at any time up to
5:00 p.m. New York City time on the expiration date set forth in the applicable
Prospectus Supplement. After 5:00 p.m. New York City time on the expiration
date, unexercised Common Stock Warrants will become void.
Common Stock Warrants may be exercised as to be set forth in the applicable
Prospectus Supplement relating to the Common Stock Warrants in respect of which
this Prospectus is being delivered. Upon receipt of payment and the Common Stock
Warrant Certificates properly completed and duly executed at the corporate trust
office of the Common Stock Warrant Agent or any other office indicated in the
applicable Prospectus Supplement, the Company will, as soon as practicable,
forward a certificate representing the number of shares of Common Stock
purchasable upon such exercise. If less than all of the Common Stock Warrants
represented by such Common Stock Warrant Certificate are exercised, a new Common
Stock Warrant Certificate will be issued for the remaining amount of Common
Stock Warrants.
Antidilution Provisions. Unless otherwise specified in the applicable
Prospectus Supplement, the exercise price payable and the number of shares
purchasable upon the exercise of each Common Stock Warrant will be subject to
adjustment in certain events, including (1) the issuance of a stock dividend to
holders of Common Stock or a combination, subdivision or reclassification of
Common Stock; (2) the issuance of rights, warrants or options to all holders of
Common Stock entitling the holders thereof to purchase Common Stock for an
aggregate consideration per share less than the then current market price per
share of the Common Stock; or (3) any distribution by the Company to the holders
of its Common Stock of evidences of indebtedness of the Company or of assets
(excluding cash dividends or distributions payable out of capital surplus and
dividends and distributions referred to in (1) above). No fractional shares will
be issued upon exercise of Common Stock Warrants, but the Company will pay the
cash value of any fractional shares otherwise issuable.
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<PAGE> 23
PREFERRED STOCK WARRANTS
General. Reference is made to the applicable Prospectus Supplement for the
terms of Preferred Stock Warrants in respect of which this Prospectus is being
delivered, the Preferred Stock Warrant Agreement relating to such Preferred
Stock Warrants and the Preferred Stock Warrant Certificates representing such
Preferred Stock Warrants, including the following: (1) the offering price of
such Preferred Stock Warrants, if any; (2) the procedures and conditions
relating to the exercise of such Preferred Stock Warrants; (3) the number of
shares of Preferred Stock purchasable upon exercise of such Preferred Stock
Warrants and the initial price at which such shares may be purchased upon
exercise; (4) the date on which the right to exercise such Preferred Stock
Warrants shall commence and the date on which such right shall expire; (5) a
discussion of the United States Federal income tax considerations applicable to
the exercise of Preferred Stock Warrants; (6) call provisions of such Preferred
Stock Warrants, if any; and (7) any other terms of the Preferred Stock Warrants.
Prior to the exercise of their Preferred Stock Warrants, holders of
Preferred Stock Warrants will not have any of the rights of holders of Preferred
Stock purchasable upon such exercise, and will not be entitled to any dividend
payments on the Preferred Stock purchasable upon such exercise.
Exercise of Stock Warrants. Each Preferred Stock Warrant will entitle the
holder to purchase for cash such number of shares of Preferred Stock at such
exercise price as shall in each case be set forth in, or be determinable as set
forth in, the applicable Prospectus Supplement relating to the Preferred Stock
Warrants offered thereby. Unless otherwise specified in the applicable
Prospectus Supplement, Preferred Stock Warrants may be exercised at any time up
to 5:00 p.m. New York City time on the expiration date set forth in the
applicable Prospectus Supplement. After 5:00 p.m. New York City time on the
expiration date, unexercised Preferred Stock Warrants will become void.
Preferred Stock Warrants may be exercised as to be set forth in the
applicable Prospectus Supplement relating to the Preferred Stock Warrants. Upon
receipt of payment and the Preferred Stock Warrant Certificates properly
completed and duly executed at the corporate trust office of the Preferred Stock
Warrant Agent or any other office indicated in the applicable Prospectus
Supplement, the Company will, as soon as practicable, forward a certificate
representing the number of shares of Preferred Stock purchasable upon such
exercise. If less than all of the Preferred Stock Warrants represented by such
Preferred Stock Warrant Certificate are exercised, a new Preferred Stock Warrant
Certificate will be issued for the remaining amount of Preferred Stock Warrants.
CURRENCY WARRANTS
The Company may issue, together with Debt Securities or Debt Warrants or
separately, Currency Warrants either in the form of Currency Put Warrants
entitling the holders thereof to receive from the Company the Cash Settlement
Value in U.S. dollars of the right to sell a specified amount of a specified
foreign currency or currency units for a specified amount of U.S. dollars, or in
the form of Currency Call Warrants entitling the holders thereof to receive from
the Company the Cash Settlement Value in U.S. dollars of the right to purchase a
specified amount of a specified foreign currency or currency units for a
specified amount of U.S. dollars. The spot exchange rate of the applicable Base
Currency, upon exercise, as compared to the U.S. dollar, will determine whether
the Currency Warrants have a Cash Settlement Value on any given day prior to
their expiration.
General. Reference is made to the applicable Prospectus Supplement for the
terms of Currency Warrants in respect of which this Prospectus is being
delivered, the Currency Warrant Agreement relating to such Currency Warrants and
the Currency Warrant Certificates representing such Currency Warrants, including
the following: (1) whether such Currency Warrants will be Currency Put Warrants,
Currency Call Warrants, or both; (2) the formula for determining the Cash
Settlement Value, if any, of each Currency Warrant; (3) the procedures and
conditions relating to the exercise of such Currency Warrants; (4) the
circumstances which will cause the Currency Warrants to be deemed to be
automatically exercised; (5) any minimum number of Currency Warrants which must
be exercised at any one time, other than upon automatic
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<PAGE> 24
exercise; and (6) the date on which the right to exercise such Currency Warrants
will commence and the date on which such right will expire.
Book-Entry Procedures and Settlement. Except as may otherwise be provided
in the applicable Prospectus Supplement, the Currency Warrants will be issued in
the form of Global Currency Warrant Certificates, registered in the name of a
depositary or its nominee. Holders will not be entitled to receive definitive
certificates representing Currency Warrants. A holder's ownership of a Currency
Warrant will be recorded on or through the records of the brokerage firm or
other entity that maintains such holder's account. In turn, the total number of
Currency Warrants held by an individual brokerage firm for its clients will be
maintained on the records of the depositary in the name of such brokerage firm
or its agent. Transfer of ownership of any Currency Warrant will be effected
only through the selling holder's brokerage firm.
Exercise of Currency Warrants. Each Currency Warrant will entitle the
holder to receive the Cash Settlement Value of such Currency Warrant on the
applicable Exercise Date, in each case as such terms will be defined in the
applicable Prospectus Supplement. If not exercised prior to 3:00 p.m., New York
City time, on the fifth New York Business Day preceding the expiration date,
Currency Warrants will be deemed automatically exercised on the expiration date.
CORPORATE PROVISIONS
CERTIFICATE OF INCORPORATION AND BYLAWS
The Company's Certificate and By-laws provide (i) for the classification of
the Company's Board of Directors into three classes to be elected to staggered
three-year terms (with the exception of Mr. David J. Roberts who is elected to a
two-year term); (ii) that special meetings of shareholders may only be called
pursuant to a resolution approved by a majority of the entire Board and (iii)
subject to the rights of any series of Preferred Stock then outstanding,
directors may be removed from office only for cause and only by the affirmative
vote of the holders of at least 66 2/3% of the voting power of all of the shares
of the Company entitled to vote for the election of directors.
The Company's Board of Directors believes that the provisions described
above and the Rights described under "Description of Capital Stock -- Preferred
Stock -- Preferred Share Purchase Rights" will help assure that all of the
Company's shareholders will be treated similarly if certain kinds of business
combinations are effected. However, these provisions also may have the effect of
deterring hostile takeovers or delaying or preventing changes in control or
management of the Company, and may make it more difficult to accomplish certain
transactions that are opposed by the incumbent Board of Directors.
NEW YORK BUSINESS CORPORATION LAW
The New York Business Corporation Law (the "BCL") requires the affirmative
vote of at least two-thirds of the voting power of the outstanding shares
entitled to vote thereon to approve mergers or consolidations in which the
Company would be merged or consolidated or the sale of all or substantially all
the assets of the Company. New York law provides that mergers, consolidations
and amendments of the Certificate must also be approved by a majority of each
class of outstanding shares, voting separately as a class, if the merger,
consolidation or amendment would (1) eliminate or limit the voting rights of the
class, (2) subordinate the rights of the class or (3) change such shares or
result in their conversion or in the modification of the terms on which they may
be converted, but only if any such actions would adversely affect the holders
thereof. Other amendments of the Certificate require the affirmative vote of a
majority of the voting power of the outstanding shares entitled to vote thereon.
In addition, Section 912 of the BCL provides that no "resident domestic
corporation" (or any subsidiary) shall engage in a "business combination" with
any "interested shareholder" (generally, a beneficial owner of 20% or more of
the outstanding voting stock) unless (1) the business combination or the
purchase of stock by the interested shareholder is approved by the board of
directors prior to such shareholder's "stock acquisition date," (2) the business
combination is approved by a majority of the voting power of the corporation's
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outstanding stock (excluding any stock owned by the interested shareholder) at a
meeting called no earlier than five years after the stock acquisition date or
(3) the consideration paid to shareholders in the business combination (which
may not occur until the expiration of five years from the stock acquisition
date) is at least equal to the highest of certain specified amounts. As defined,
a "resident domestic corporation" is a corporation incorporated in New York that
either has its principal executive offices and significant business operations
in New York, or that, alone or in combination with one or more subsidiaries of
which it owns 80% or more of the voting stock, has at least 250 employees or 25%
of the total number of employees of itself and such subsidiaries employed within
New York, and that has 10% of its voting stock beneficially owned by residents
of New York; a "business combination" includes a merger or consolidation, a sale
of assets representing 10% or more of the corporation's consolidated earning
power or market value, the issuance of stock amounting to 5% or more of the
corporation's outstanding stock and a liquidation proposal made by the
interested shareholder; and the "stock acquisition date" is the date on which a
shareholder first becomes an interested shareholder.
LIMITATION OF LIABILITY AND INDEMNIFICATION MATTERS
The Company has a By-law provision requiring it to indemnify its directors
and officers to the fullest extent permitted in certain circumstances, to
advance expenses, to maintain insurance and to follow certain other procedures.
Provisions of the Certificate eliminate the personal monetary liability of
directors and officers for breaches of duty, except for (i) breaches of such
person's duty of loyalty, (ii) those instances where such person is found not to
have acted in good faith or in knowing violation of law, (iii) those instances
where such person received an improper personal benefit as the result of such
breach and (iv) acts in violation of Section 719 of the BCL.
TRANSFER AGENT
The transfer agent for the Common Stock is Mellon Securities Trust Company.
PLAN OF DISTRIBUTION
GENERAL
The Company may sell the Securities directly to purchasers, through agents,
through underwriters, or through dealers.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
Offers to purchase Securities may be solicited directly by the Company or
by agents designated by the Company from time to time. Any such agent, who may
be deemed to be an underwriter as that term is defined in the Securities Act
involved in the offer or sale of the 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 Prospectus Supplement, any such agent will be acting
on a best efforts basis for the period of its appointment. Agents may be
customers of, engage in transactions with or perform services for the Company in
the ordinary course of business.
If an underwriter or underwriters are utilized in the sale, the Company
will execute an underwriting agreement with such underwriters at the time of
sale to them, and the names of the underwriters and the terms of the transaction
will be set forth in the Prospectus Supplement, which will be used by the
underwriters to make resales of the Securities in respect of which this
Prospectus is delivered to the public.
If a dealer is utilized in the sale of the Securities in respect of which
this Prospectus is delivered, the Company will sell such Securities to such
dealer, as principal. The dealer may then resell such Securities to the public
at varying prices to be determined by such dealer at the time of resale.
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Agents, underwriters and dealers may be entitled under the relevant
agreements to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will authorize
agents or underwriters to solicit offers by certain institutions to purchase
Securities from the Company at the public offering price set forth in the
Prospectus Supplement pursuant to delayed delivery contracts ("Contracts")
providing for payment and delivery on the date stated in the Prospectus
Supplement. Each Contract will be for an amount not less than, and unless the
Company otherwise agrees the aggregate principal amount of Securities sold
pursuant to Contracts shall be not more than, the respective amounts stated in
the Prospectus Supplement. Institutions with which Contracts, when authorized,
may be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions and other
institutions, but shall in all cases be subject to the approval of the Company.
Contracts will not be subject to any condition except that the purchase by an
institution of the Securities covered by its Contract shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United States
to which such institution is subject. A commission indicated in the Prospectus
Supplement will be paid to underwriters or agents soliciting purchases of
Securities pursuant to Contracts accepted by the Company.
The place and time of delivery for the Securities in respect of which this
Prospectus is delivered will be set forth in the Prospectus Supplement.
EXPERTS
The consolidated balance sheets as of December 30, 1994 and December 31,
1993 and the consolidated statements of earnings, changes in stockholders'
equity and cash flows for each of the three years in the period ended December
30, 1994, incorporated by reference in the registration statement, have been
incorporated herein in reliance on the report of Coopers & Lybrand L.L.P.,
independent accountants, given on the authority of that firm as experts in
accounting and auditing. The combined financial statements of Pyropower as of
and for the year ended December 31, 1994 have been incorporated by reference
herein and in the registration statement in reliance upon the reports,
incorporated by reference herein, of KPMG Wideri OY AB and Coopers & Lybrand
L.L.P., independent accountants, and upon the authority of said firms as experts
in accounting and auditing.
LEGAL MATTERS
The validity of the issuance of the Securities offered hereby will be
passed upon for the Company by White & Case, New York, New York, and certain
legal matters will be passed upon by Thomas R. O'Brien, Esq., General Counsel of
the Company, and for the underwriters, if any, by Skadden, Arps, Slate, Meagher
& Flom, New York, New York.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Expenses in connection with the issuance of the securities being registered
hereby are estimated as follows:
<TABLE>
<S> <C>
Registration fee................................................. $ 172,414
Accounting fees and expenses..................................... 485,000
Legal fees and expenses.......................................... 225,000
Blue Sky and Legal Investment fees and expenses.................. 10,000
Transfer Agent's fees and expenses............................... 5,000*
Rating Agency fees............................................... 200,000
Trustee fees..................................................... 6,000*
Printing expenses................................................ 50,000
Miscellaneous.................................................... 21,586
---------
Total.......................................................... $1,175,000
=========
</TABLE>
- ---------------
* Subject to future contingencies.
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Reference is made to Sections 721 through 726 of the New York Business
Corporation Law (the "BCL"), which are summarized below.
Section 721 of the BCL provides that indemnification pursuant to the BCL
shall not be deemed exclusive of other indemnification rights to which a
director or officer may be entitled, provided that no indemnification may be
made if a judgment or other final adjudication adverse to the director or
officer establishes that (1) his acts were committed in bad faith or were the
result of active and deliberate dishonesty, and, in either case, were material
to the cause of action so adjudicated, or (2) he personally gained in fact a
financial profit or other advantage to which he was not legally entitled.
Section 722(a) of the BCL provides that a corporation may indemnify a
director or officer made, or threatened to be made, a party to any civil or
criminal action, other than a derivative action, against judgments, fines,
amounts paid in settlement and reasonable expenses actually and necessarily
incurred as a result of such action or proceeding, or any appeal therein, if
such director or officer acted in good faith, for a purpose which he reasonably
believed to be in the best interests of the corporation and, in criminal actions
or proceedings, in addition, had no reasonable cause to believe that his conduct
was unlawful. With respect to derivative actions, Section 722(c) of the BCL
provides that a director or officer may be indemnified only against amounts paid
in settlement and reasonable expenses, including attorneys' fees, actually and
necessarily incurred in connection with the defense or settlement of such
action, or any appeal therein, if such director or officer acted in good faith,
for a purpose which he reasonably believed to be in the best interests of the
corporation and that no indemnification shall be made in respect of (1) a
threatened action, or a pending action which is settled or otherwise disposed
of, or (2) any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and to the extent an appropriate
court determines that the person is fairly and reasonably entitled to partial or
full indemnification.
Section 723 of the BCL specifies the manner in which payment of such
indemnification may be authorized by the corporation. It provides that
indemnification by a corporation is mandatory in any case in which the director
or officer has been successful, whether on the merits or otherwise, in defending
an action. In the event that the director or officer has not been successful or
the action is settled, indemnification may be made by the corporation only if
authorized by any of the corporate actions set forth in such Section 723 (unless
the corporation has provided for indemnification in some other manner as
otherwise permitted by
II-1
<PAGE> 28
Section 721 of the BCL). Section 724 of the BCL provides that upon proper
application by a director or officer, indemnification shall be awarded by a
court to the extent authorized under Sections 722 and 723 of the BCL. Section
725 of the BCL contains certain other miscellaneous provisions affecting the
indemnification of directors and officers, including provision for the return of
amounts paid as indemnification if any such person is ultimately found not to be
entitled thereto. Section 726 of the BCL authorizes the purchase and maintenance
of insurance to indemnify (1) a corporation for any obligation which it incurs
as a result of the indemnification of directors and officers under the above
sections, (2) directors and officers in instances in which they may be
indemnified by a corporation under such sections, and (3) directors and officers
in instances in which they may not otherwise be indemnified by a corporation
under such sections, provided the contract of insurance covering such directors
and officers provides, in a manner acceptable to the New York State
Superintendent of Insurance, for a retention amount and for co-insurance.
Article EIGHTH of the Certificate provides that a director of the
corporation shall not be personally liable to the corporation or its
shareholders for damages for any breach of duty in such capacity except that the
liability of a director shall not be limited (1) if a judgment or other final
adjudication adverse to him establishes that his acts or omissions were in bad
faith or involved in intentional misconduct or knowing violation of law or that
he personally gained in fact a financial profit or other advantage to which he
was not legally entitled or that his acts violated section 719 of the BCL, or
(2) his acts or omissions occurred prior to the adoption of said Article of the
Certificate.
In addition, the Company's By-laws provide for indemnification of its
directors and officers to the fullest extent permitted in certain circumstances,
to advance expenses, to maintain insurance and to follow certain other
procedures.
The Company carries two layers of directors' and officers' insurance. The
primary layer of $15 million annual aggregate amount is provided by the National
Union Fire Insurance Company of Pittsburgh, PA. An excess layer of $10 million
annual aggregate amount is underwritten by CNA Insurance Companies.
II-2
<PAGE> 29
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENTS
- ------ ------------------------------------------------------------------------------------
<S> <C>
1.1 Form of Underwriting Agreement between the Company and the underwriters named
therein for Common Stock, Preferred Stock, Debt Securities, Depositary Shares and
Warrants*
3.1 Certificate of Incorporation -- restated, filed June 5, 1989 (Filed as Exhibit 2 to
the Company's 1989 Annual Report on Form 10-K and incorporated herein by reference)
3.2 By-laws as last amended on June 27, 1995 (Filed as Exhibit 3 to the Company's June
30, 1995 Quarterly Report on Form 10-Q and incorporated herein by reference)
4.1 Form of Indenture between the Company and Harris Trust and Savings Bank, as Trustee,
for Debt Securities*
5.1 Opinion of White & Case
12.1 Statement of Computation of Consolidated Ratio of Earnings to Fixed Charges and
Combined Fixed Charges and Preferred Share Dividend Requirements (previously filed)
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of KPMG Wideri Oy AB
23.3 Consent of Coopers & Lybrand L.L.P.*
23.4 Consent of White & Case (contained in its opinion filed as Exhibit 5.1)
24 Power of Attorney (see "Power of Attorney" in the Registration Statement)
25.1 Statement of Eligibility of Trustee (separately bound)*
</TABLE>
- ---------------
* To be filed by amendment or on Form 8-K.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant 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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(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 Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
II-3
<PAGE> 30
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in this Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(5) That, for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, 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 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 Act and will be governed by the final adjudication of
such issue.
II-4
<PAGE> 31
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 25th day of
October, 1995.
Foster Wheeler Corporation
By: /s/ RICHARD J. SWIFT
----------------------------------
Richard J. Swift
Chairman of the Board, President and
Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES STATED BELOW ON THE 25TH DAY OF OCTOBER, 1995.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ---------------------------- -----------------
<S> <C> <C>
/s/ RICHARD J. SWIFT Director, Chairman of the October 25, 1995
- ------------------------------------------ Board, President and Chief
Richard J. Swift Executive Officer (Principal
Executive Officer)
/s/ DAVID J. ROBERTS Director, Vice Chairman and October 25, 1995
- ------------------------------------------ Chief Financial Officer
(David J. Roberts) (Principal Financial
Officer)
/s/ GEORGE S. WHITE Vice President and October 25, 1995
- ------------------------------------------ Controller (Principal
(George S. White) Accounting Officer)
* Director October 25, 1995
- ------------------------------------------
(Eugene D. Atkinson)
* Director October 25, 1995
- ------------------------------------------
(Louis E. Azzato)
* Director October 25, 1995
- ------------------------------------------
(Kenneth A. DeGhetto)
* Director October 25, 1995
- ------------------------------------------
(E. James Ferland)
* Director October 25, 1995
- ------------------------------------------
(Martha Clark Goss)
* Director October 25, 1995
- ------------------------------------------
(John A. Hinds)
* Director October 25, 1995
- ------------------------------------------
(Joseph J. Melone)
</TABLE>
II-5
<PAGE> 32
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ---------------------------- -----------------
<S> <C> <C>
* Director October 25, 1995
- ------------------------------------------
(Frank E. Perkins)
* Director October 25, 1995
- ------------------------------------------
(Charles Y. C. Tse)
* Director October 25, 1995
- ------------------------------------------
(Robert Van Buren)
*By: /s/ DAVID J. ROBERTS
--------------------------------------
(David J. Roberts)
</TABLE>
II-6
<PAGE> 33
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENTS PAGE
- ------ ------------------------------------------------------------------------------- ----
<S> <C> <C>
1.1 Form of Underwriting Agreement between the Company and the underwriters named
therein for Common Stock, Preferred Stock, Debt Securities, Depositary Shares
and Warrants*
3.1 Certificate of Incorporation -- restated, filed June 5, 1989 (Filed as Exhibit 2
to the Company's 1989 Annual Report on Form 10-K and incorporated herein by
reference)
3.2 By-laws as last amended on June 27, 1995 (Filed as Exhibit 3 to the Company's
June 30, 1995 Quarterly Report on Form 10-Q and incorporated herein by
reference)
4.1 Form of Indenture between the Company and Harris Trust and Savings Bank, as
Trustee, for Debt Securities*
5.1 Opinion of White & Case
12.1 Statement of Computation of Consolidated Ratio of Earnings to Fixed Charges and
Combined Fixed Charges and Preferred Share Dividend Requirements (previously
filed)
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of KPMG Wideri Oy AB
23.3 Consent of Coopers & Lybrand L.L.P.*
23.4 Consent of White & Case (contained in its opinion filed as Exhibit 5.1)
24 Power of Attorney (see "Power of Attorney" in the Registration Statement)
25.1 Statement of Eligibility of Trustee (separately bound)*
</TABLE>
- ---------------
* To be filed by amendment or on Form 8-K.
<PAGE> 1
EXHIBIT 5.1
WHITE & CASE
1155 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 819-8200
October 26, 1995
Foster Wheeler Corporation
Perryville Corporate Park
Clinton, New Jersey 08809
Dear Sirs:
We refer to the Registration Statement No. 33-61809 on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), in the form in which it is to be filed today by Foster
Wheeler Corporation, a New York corporation ("Foster Wheeler"), with the
Securities and Exchange Commission (the "Commission"), relating to (A) up to
$500,000,000 aggregate principal amount or initial offering price of Foster
Wheeler's (i) debt securities consisting of debentures, notes or other unsecured
evidences of indebtedness (the "Debt Securities") which may be either senior
debt securities or subordinated debt securities, to be issued from time to time
pursuant to the terms of an Indenture between Foster Wheeler and Harris Trust
and Savings Bank (the "Indenture"); (ii) shares of preferred stock (the
"Preferred Stock") the specific titles, rights and terms of which will be set
forth in a Certificate of Designation which may be filed or incorporated by
reference as an exhibit to the Registration Statement (each a "Certificate of
Designation"), which may be issued in the form of depositary receipts (the
"Depositary Shares") which will represent a fraction of a share of Preferred
Stock which Depositary Shares may be issued under a Deposit Agreement, a form of
which may be filed or incorporated by reference as an exhibit to the
Registration Statement (the "Deposit Agreement"); (iii) shares of common stock
(the "Common Stock"); and (iv) warrants to purchase securities of the Company as
shall be designated by the Company at the time of the offering thereof (the
"Warrants") pursuant to Warrant Agreements forms of which may be filed or
incorporated by reference as exhibits to the Registration Statement (the
"Warrant Agreements"), in the case of (i), (ii), (iii) and (iv) above, in
amounts, at prices and on terms to be determined at the time of the offering.
The Debt Securities, the Preferred Stock, the Depositary Shares, the Common
Stock and the Warrants are collectively referred to as the "Securities." The
Securities are to be sold directly to purchasers or through agents or
underwriters, including the underwriter listed on the cover page of the
Prospectus forming part of the Registration Statement. The issuance and terms of
the Securities to be offered and sold by Foster Wheeler are to be authorized and
approved and the manner of sale is to be determined in additional proceedings
proposed to be taken by Foster Wheeler's Board of Directors or a duly authorized
committee thereof.
We have examined the originals, or photostatic or certified copies, of such
records of Foster Wheeler, certificates of officers of Foster Wheeler and of
public officials and such other documents as we have deemed relevant and
necessary as the basis for the opinion set forth below. We have relied upon such
certificates of officers of Foster Wheeler and of public officials and
statements and information furnished by officers of Foster Wheeler with respect
to the accuracy of material factual matters contained therein which were not
independently established by us. In such examination we have assumed 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 photostatic or certified copies, and the authenticity of the originals of
such copies.
Based upon our examination described above, subject to the assumptions
stated, and subject to such proposed additional proceedings being taken prior to
the issuance of the Securities, to the terms of the
<PAGE> 2
Securities being otherwise in compliance with then applicable law, and to the
extent applicable to the Securities to be issued, to the authorization,
execution and delivery of the Indenture, Deposit Agreement and Warrant
Agreement, and the authorization, execution, filing and recording of one or more
Certificates of Designation, it is our opinion that the Securities, upon
issuance and sale by Foster Wheeler as contemplated in the Registration
Statement and any amendments and prospectus supplements thereto, will have been
duly authorized by Foster Wheeler and with respect to the Common Stock and the
Preferred Stock upon delivery thereof against payment therefor, validly issued,
fully paid and non-assessable, and that the Debt Securities, the Depositary
Shares and the Warrants, when duly executed, authenticated, issued and delivered
against payment therefor in accordance with the Indenture, Deposit Agreement or
Warrant Agreements, will constitute legally binding obligations of Foster
Wheeler.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to our firm appearing under the caption "Legal
Matters" in the Prospectus forming part of the Registration Statement. In giving
this consent, we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Very truly yours,
WHITE & CASE
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of Foster Wheeler Corporation on Form S-3 (File No. 33-61809) of our report
dated February 13, 1995, on our audits of the consolidated financial statements
of Foster Wheeler Corporation and Subsidiaries as of December 30, 1994 and
December 31, 1993, and for each of the three years in the period ended December
30, 1994, which report is incorporated by reference in the Corporation's Annual
Report on Form 10-K, as amended on Form 10-K/A, dated October 23, 1995. We also
consent to the reference to our firm under the caption "Experts" in the
registration statement.
Coopers & Lybrand L.L.P.
New York, New York
October 25, 1995
<PAGE> 1
EXHIBIT 23.2
The Board of Directors of A. Ahlstrom Corporation:
We consent to the incorporation by reference in the registration statement
(No. 33-61809) on Form S-3 of Foster Wheeler Corporation of our report dated
October 5, 1995, with respect to the combined statement of assets and
liabilities of Ahlstrom Pyropower as of December 31, 1994, and the related
combined statements of revenues and expenses and cash flows for the year then
ended, which report appears in the Form 8-K of Foster Wheeler Corporation dated
October 12, 1995 and to the reference to our firm under the heading "Experts" in
the Prospectus Supplement.
Helsinki, Finland, October 12, 1995
KPMG WIDERI OY AB
Eric Haglund
Authorized Public Accountant
