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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 14, 1995.
REGISTRATION NO. 33-
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
FOSTER WHEELER CORPORATION
(Exact name of registrant as specified in its charter)
NEW YORK 13-1855904
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
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:
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
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after this Registration Statement becomes effective.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /x/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED(1) PER UNIT(2)(3) OFFERING PRICE(1)(2)(3) REGISTRATION FEE(7)
<S> <C> <C> <C> <C>
Debt Securities(4).............
Preferred Stock(4).............
Depositary Shares(6)...........
Common Stock(4), (5), (8)......
Warrants.......................
Total........................ $500,000,000 100% $500,000,000 $172,414
</TABLE>
Notes are on next page
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
--------------------------------------------------------------------------------
<PAGE> 3
---------------
(1) In United States dollars or the equivalent thereof in one or more
foreign currencies or units of two or more foreign currencies or
composite currencies (such as European Currency Units). The aggregate
initial offering price of the Debt Securities, Preferred Stock,
Depositary Shares Common Stock, and Warrants (collectively, the
"Securities") registered hereby will not exceed $500,000,000. Such
amount represents the principal amount of any Debt Securities issued at
their principal amount, the issue price rather than the principal
amount of any Debt Securities issued at an original issue discount, the
liquidation preference of any Preferred Stock, the amount computed
pursuant to Rule 457(c) for any Common Stock, the issue price of any
Warrants and the exercise price of any Securities issuable upon the
exercise of such Warrants.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933.
(3) No separate consideration will be received for the Depositary Shares or
for Debt Securities, Preferred Stock or Common Stock that may be
issuable upon conversion of or in exchange for convertible or
exchangeable Debt Securities or Preferred Stock.
(4) Includes such indeterminate principal amount of Debt Securities and
such indeterminate number of shares of Preferred Stock and Common
Stock, as may be issued upon conversion of or in exchange for
convertible or exchangeable Debt Securities or Preferred Stock.
(5) The Common Stock to be issued in the Offering includes Preferred Share
Purchase Rights associated with the Common Stock under a Shareholder
Rights Plan.
(6) Such indeterminate number of Depositary Shares to be evidenced by
Depositary Receipts issued pursuant to a Deposit Agreement. In the
event the Registrant elects to offer to the public fractional interests
in shares of the Preferred Stock registered hereunder, Depositary
Receipts will be distributed to those persons acquiring such fractional
interest and the shares of Preferred Stock will be issued to the
Depositary under the Deposit Agreement.
(7) Calculated pursuant to Rule 457(a), based upon bona fide estimate as of
the date hereof of maximum offering price.
(8) Includes Common Stock that is to be offered and sold outside the United
States either as part of the distribution or within 40 days after the
later of the effective date of this registration statement and the date
the Common Stock is first offered to the public.
<PAGE> 4
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION AUGUST 14, 1995
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") which 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."
---------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------
The 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
, 1995
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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.
---------------
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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.
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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 for the fiscal year
ended December 30, 1994,
(b) the Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1995 and June 30, 1995, and
(c) the Company's Proxy Statement for the Annual Meeting of
Stockholders on April 25, 1995 (heretofore filed by the Company
with the Commission pursuant to the Exchange Act).
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
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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 Mr. Thomas R. O'Brien, Esq., General Counsel, Foster Wheeler
Corporation, Perryville Corporate Park, Clinton, New Jersey 08809, telephone
number (908) 730-4000.
---------------
THE COMPANY
Foster Wheeler Corporation is a leading international industrial
engineering, construction, maintenance and related technical service company.
The business of the Company and its subsidiaries falls within three business
groups: Engineering and Construction, Energy Equipment and Power Systems.
The Engineering and Construction Group primarily designs, engineers and
constructs process plants and fired heaters for oil refineries and synthetic
fuel and chemical producers and provides environmental services, including
hazardous and mixed waste investigation, remediation, pollution control systems
and wastewater treatment. The Energy Equipment Group primarily designs and
fabricates steam generators and condensers, supplies mass-transfer equipment,
tower packings and industrial wire mesh and provides engineering construction
for natural gas processing. The Power Systems Group owns, leases, and operates
for third parties solid waste-to-energy and cogeneration facilities.
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.
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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, plus
dividends received from non-consolidated associated companies accounted for by
the equity method, less capitalized interest net of amount amortized and equity
earnings of non-consolidated associated companies accounted for by the equity
method. 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 other 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,
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all of the provisions of the Indenture. Capitalized terms are defined in the
Indenture unless otherwise defined herein. Whenever any particular section of
the Indenture or any term defined therein is referred to, such section or
definition is incorporated herein by reference.
GENERAL
The Indenture does not limit the amount of Debt Securities which 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 which 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 Indebtedness (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 Indebtedness 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
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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 which 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 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.
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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 shall 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 which 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
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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 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
If so indicated in the applicable Prospectus Supplement with respect to
a particular series of Debt Securities, the Company will be subject to the
covenants described therein.
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
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(4) default in the performance, or breach, of any covenant or
agreement of the Company in the Indenture or the Debt Securities of
such series (other than a covenant or agreement 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 indebtedness of the Company or Indebtedness that the
Company has guaranteed where the aggregate principal amount so
accelerated exceeds $15 million or (ii) Indebtedness 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 pursuant to
performance guarantees given by a Subsidiary and 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, 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
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decree or order shall remain unstayed and in effect for a period of 90
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
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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 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
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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.
SATISFACTION, DISCHARGE, AND DEFEASANCE PRIOR TO MATURITY OR REDEMPTION
Covenant Defeasance of any Series
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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
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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.
SENIOR INDEBTEDNESS
The Debt Securities that will be designated and will constitute part of
the Senior Indebtedness 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
Indebtedness of the Company as defined in the applicable Prospectus Supplement.
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 may have customary
banking relationships with the Trustee 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 March 31, 1995 there were 35,828,610 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
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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.
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. The market
price of any series of Preferred Stock can be expected to fluctuate with changes
in market and economic conditions, the financial condition and prospects of the
Company and other factors that generally influence the market price of
securities.
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 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,
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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
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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.
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 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,
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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 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.
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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
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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.
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
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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 Share Purchase
Rights."
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
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<PAGE> 28
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.
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
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<PAGE> 29
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 U.S. 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
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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.
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 U.S. 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
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<PAGE> 31
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 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.
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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 BY-LAWS
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
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
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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
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
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<PAGE> 34
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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<PAGE> 35
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 this 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.
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 P. 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 . . . . . . . . . . . . . . . . *
Legal fees and expenses . . . . . . . . . . . . . . . . . . . *
Blue Sky and Legal Investment fees and expenses . . . . . . . $25,000
Transfer Agent's fees and expenses . . . . . . . . . . . . . *
Rating Agency fees . . . . . . . . . . . . . . . . . . . . . *
Trustee fees . . . . . . . . . . . . . . . . . . . . . . . . *
Printing expenses . . . . . . . . . . . . . . . . . . . . . . *
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . *
---------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . $ *
=========
</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
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<PAGE> 37
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 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)
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<PAGE> 38
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.
ITEM 16. EXHIBITS.
Exhibit
Number Description of Documents
------- ------------------------
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
4.2* Form of Deposit Agreement between the Company and the Depositary, for
Depositary Shares and Depositary Receipts
[4.3* Form of Common Stock Warrant Agreement]
[4.4* Form of Preferred Stock Warrant Agreement]
[4.5* Form of Debt Warrant Agreement]
[4.6* Form of Currency Warrant Agreement]
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
23.1 Consent of Coopers & Lybrand L.L.P.
23.2* 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)
* To be filed by amendment.
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:
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<PAGE> 39
(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.
(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.
II-4
<PAGE> 40
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-5
<PAGE> 41
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 14th day of
August, 1995.
Foster Wheeler Corporation
By: /s/ Richard J. Swift
----------------------------------------
Richard J. Swift
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints and
hereby authorizes Richard J. Swift, David J. Roberts and Thomas R. O'Brien,
severally, such person's true and lawful attorneys-in-fact, with full power of
substitution or resubstitution, for such person and in his name, place and
stead, in any and all capacities, to sign on such person's behalf, individually
and in each capacity stated below, any and all amendments, including
post-effective amendments to this Registration Statement and to sign any and all
additional registration statements relating to the same offering of securities
as this Registration Statement that are filed pursuant to the Rule 462(b) of the
Securities Act of 1933, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as such person
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact, or their substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
<PAGE> 42
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 14TH DAY OF AUGUST, 1995.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Richard J. Swift Director, Chairman of the Board, President August 14, 1995
------------------------------- and Chief Executive Officer (Principal
(Richard J. Swift) Executive Officer)
/s/ David J. Roberts Vice Chairman and Chief Financial
------------------------------- Officer (Principal Financial Officer) August 14, 1995
(David J. Roberts)
/s/ George S. White Vice President and Controller August 14, 1995
------------------------------- (Principal Accounting Officer)
(George S. White)
/s/ Eugene D. Atkinson Director August 14, 1995
-------------------------------
(Eugene D. Atkinson)
/s/ Louis E. Azzato Director August 14, 1995
-------------------------------
(Louis E. Azzato)
/s/ Kenneth A. DeGhetto Director August 14, 1995
-------------------------------
(Kenneth A. DeGhetto)
/s/ E. James Ferland Director August 14, 1995
-------------------------------
(E. James Ferland)
/s/ Martha Clark Goss Director August 14, 1995
-------------------------------
(Martha Clark Goss)
/s/ John A. Hinds Director August 14, 1995
-------------------------------
(John A. Hinds)
/s/ Joseph J. Melone Director August 14, 1995
-------------------------------
(Joseph J. Melone)
/s/ Frank E. Perkins Director August 14, 1995
-------------------------------
(Frank E. Perkins)
/s/ Charles Y.C. Tse Director August 14, 1995
------------------------------
(Charles Y. C. Tse)
/s/ Robert Van Buren Director August 14, 1995
------------------------------
(Robert Van Buren)
</TABLE>
<PAGE> 43
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
4.2* Form of Deposit Agreement between the Company and the Depositary, for
Depositary Shares and Depositary Receipts
[4.3* Form of Common Stock Warrant Agreement]
[4.4* Form of Preferred Stock Warrant Agreement]
[4.5* Form of Debt Warrant Agreement]
[4.6* Form of Currency Warrant Agreement]
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
23.1 Consent of Coopers & Lybrand L.L.P.
23.2* 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)
* To be filed by amendment
</TABLE>
<PAGE> 1
EXHIBIT 12.1
Foster Wheeler Corporation
Statement of Computation of Consolidated Ratio of Earnings to
Fixed Charges and Combined Fixed Charges and
Preferred Share Dividend Requirements*
($000's)
<TABLE>
<CAPTION>
Year ended December 31,
Six months ended -----------------------------------------------------------------
June 30, 1995 1994 1993 1992 1991 1990
--------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Net earnings/loss $ 36,770 $ 65,410 $ 57,704 ($ 45,755) $ 43,268 $ 38,277
Income taxes 19,287 41,457 39,114 22,321 18,017 10,116
Cumulative effect of change in
accounting principle 0 0 0 91,259 0 0
Total fixed charges 27,569 45,412 43,371 46,365 41,631 35,198
Capitalized interest 0 (467) (213) (1,739) (7,824) (13,671)
Capitalized interest amortized 1,104 2,189 2,180 2,111 1,798 1,251
Equity earnings of non-consolidated
associated companies accounted
for by the equity method, net of
dividends (7) (623) (883) 771 (1,301) (369)
--------- --------- --------- --------- --------- ---------
Total: $ 84,723 $ 153,378 $ 141,273 $ 115,333 $ 95,589 $ 70,802
========= ========= ========= ========= ========= =========
Fixed Charges:
Interest expense $ 22,431 $ 34,978 $ 33,558 $ 34,159 $ 24,540 $ 13,994
Capitalized interest 0 467 213 1,739 7,824 13,671
Imputed interest on non-capitalized
lease payments 5,138 9,967 9,600 10,467 9,267 7,533
--------- --------- --------- --------- --------- ---------
Total: $ 27,569 $ 45,412 $ 43,371 $ 46,365 $ 41,631 $ 35,198
========= ========= ========= ========= ========= =========
RATIO OF EARNINGS TO FIXED CHARGES 3.07 3.38 3.26 2.49 2.30 2.01
==== ==== ==== ==== ==== ====
</TABLE>
* There were no preferred shares outstanding during any of the periods indicated
and therefore the consolidated ratio of earnings to fixed charges and combined
fixed charges and preferred share dividend requirements would have been the same
as the consolidated ratio of earnings to fixed charges and combined fixed
charges for each period indicated.
<PAGE> 1
[COOPERS & LYBRAND LETTERHEAD]
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. __________) 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 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, which report is incorporated by reference in the
Corporation's Annual Report on Form 10-K. 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
Auigust 11, 1995
